Jay v. Michael , 92 Md. 198 ( 1900 )

The appellants filed a bill in equity in the Circuit Court for Harford County to restrain the appellee from obstructing a right of way claimed by them over lands of the appellee, and this appeal is from a decree dissolving the preliminary injunction granted, and dismissing the bill.

The controversy arises upon the following state of facts:

Two sisters, Maria M. and Frenetta F. Smith, were the owners of two adjoining tracts of land in Harford County, one called "Mould's Success" containing 335 acres, and another called "Horner's Fishery" containing 9 acres. The former borders upon a public road. The latter projects into, and is wholly surrounded by the former except at two narrow points where it touches the waters of Swan Creek, which is one of the boundaries of "Mould's Success," and the only access from any public road to "Horner's Fishery" is by a private way over "Mould's Success," leading from the public road to the buildings upon "Mould's Success" and used for more than 40 years, for access to these buildings and to "Horner's Fishery." The Misses Smith derived their title to "Mould's Success" by deed from Priscilla Presbury, in 1813, and to "Horner's Fishery" by inheritance from their brother, Samuel Griffith Smith, in 1845. They died seized of these two tracts in 1860, leaving wills by which they devised all their real estate, to John Jay, their brother of the half blood, for life, with remainders in fee to his two sons, the appellants in this case, who subsequently conveyed to their father their interest as remainder-men in "Mould's Success," with covenants of special warranty. John Jay, in 1889, conveyed "Mould's Success" to James B. Baker with covenants of warranty against all persons claiming through him or his sons, and in 1893, Baker conveyed the same to the appellee with like covenants of warranty. John Jay died in 892. The appellee claimed that the conveyance from the appellants to their father embraced "Horner's Fishery," when they brought an action of ejectment for its recovery. This case is reported in 82 Md. 1, and was further reported in 91 Md. 75, their title being finally established in the latter case.

The way claimed is a way of necessity. The bill avers that "the only road or access from the highroad to ``Horner's Fishery' is over the land of the defendant sold as aforesaid by the ancestor of complainants, who reserved thereon an easement or right of way to and from his said land, known as ``Horner's Fishery,' to James B. Baker, and he to the defendant," and that a well-defined road running over "Mould's Success" along its southern line, had existed and been continuously used in connection with "Horner's Fishery" for over fifty years, by complainants and those under whom they claim, and that the defendant had obstructed said road by locking and chaining a gate thereon, and had refused their request to unchain and open the same.

The answer admitted plaintiff's title to "Horner's Fishery," the locking and chaining of the gate, and the refusal to open it, but denied the reservation of the right of way alleged in the bill, and denied the existence of any right of way to "Horner's Fishery," and referred to certified copies of the deeds from plaintiffs to their father, and from him to Baker, and from Baker to defendant, in none of which was there any mention of any such reservation, or of any such existing road. The answer averred that previous to Baker's purchase of "Mould's Success," in 1889, "Horner's Fishery" was always used as an undefined part of the farm called "Mould's Success," and that the road now claimed by the plaintiffs was only used for the purposes of that farm, and by permission of the owners thereof, and that the effect of the conveyances mentioned was to estop the plaintiffs from claiming such right of way. It further charged that the plaintiffs had an adequate remedy at law for any alleged trespass, and that the law provided the means of procuring a private way over "Mould's Success," if such way should be made to appear necessary and proper.

It appears from the testimony that an inlet of Swan Creek divides "Horner's Fishery" into two parcels, and that the private road described has two distinct branches, one leading to each of these parcels. One of the plaintiffs testified that he had known this road for forty-five years, that there was no other approach to "Horner's Fishery," and that the two branches of that road had been used for access to these two parcels ever since he could remember. The defendant testified that he remembered the road for thirty-five years, and that he never knew it to be used except as a private road for "the farm;" for the tenant of the farm hauling grain to the point at the foot of the lane leading down to the smaller parcel of "Horner's Fishery," and to haul fish from the point to Aberdeen. It appears from the testimony that part of "Horner's Fishery," was tillable land, and that, as its name indicates, seine hauling for fish was carried on there, and the testimony of the defendant would thus indicate that the "Horner's Fishery tract," in some way, enjoyed the use of both branches of this road, for the delivery at the point, or at Aberdeen, of the grain raised on the tillable land reached by the branch to the buildings on "Mould's Success," and for the hauling of fish landed at the point, from thence to Aberdeen. It is obvious, therefore, that if the plaintiffs are entitled either to a way by prescription, or to a way of necessity, none could be better adapted to the convenience of both parties, than the existing road with its two branches, and it is equally obvious if it be assumed that the plaintiffs are only entitled to a way of necessity, that defendant could not rightfully obstruct the only existing way until he had assigned plaintiffs another suitable way. Oliver v. Hook, 47 Md. 310. And in McTavish v.Carroll, 7 Md. 352, it was held that where one owns two closes with a road from the former over the latter to the highway, and sells the latter without reserving in the deed any right of way, he may, if he has no other, use the road over the latter as a way of necessity.

We think injunction the proper remedy in this case. InAmelung v. Seekamp, 9 G. J. 468, the bill did not aver that the way obstructed was the only way of the plaintiff, and did not state facts to satisfy the Court that irreparable mischief would ensue, and for that reason the injunction was denied. But this bill does charge that the way obstructed is the only means of access and that the plaintiff's property will be permanently injured and its value destroyed, if deprived of a right of way, and no argument is needed to show that such injury must be the necessary consequence of the position and condition of this property as hereinbefore stated. In Roman v. Strauss,10 Md. 89, it was held that one entitled to a right of way over a road or a street, may be protected in its enjoyment by an injunction restraining the erection of obstructions thereon, and an averment that the streets binding on the property were nearly impassable by reason of railroad tracks laid upon them, and that if the proposed railroad track should be laid across the alley over which the right of way existed, the value of the property would be nearly destroyed, was held sufficient. In Shipley v. Caples, 17 Md. 183, where plaintiff claimed a prescriptive right of way over defendant's land from his own land to a highway, and the bill stated he had no other outlet except by a circuitous and inconvenient route over lands of others, and by their permission, which could be at any time withdrawn, the injunction was granted. We do not need therefore to look beyond our own decisions, though should we do so, we find them supported by such eminent Courts as those of New Jersey and Michigan, and the doctrine is fully sustained by Mr. Beach in his work on Injunctions, vol. 2, p. 1016. Nor can the provision of ourCode, Art. 25, secs. 100 to 117, relating to the acquisition of private ways, affect the question. A private right of way over the land of another must be founded either on grant, or prescription, which presupposes a grant. Pue v. Pue, 4 Md. Ch. 386.

"If A conveys land to B, to which B can have access only by passing over the land of A, there is an implied grant of a way of necessity. And if A conveys land to B, leaving other land of A to which he can have access only by passing over the land granted, there is implied in the grant a reservation of a way of necessity." McTavish v. Carroll, supra, 359. A way of necessity thus must have its origin either in implied grant, or in implied reservation from the grant, and however created is part of the consideration passing between the parties, and neither the grantee by implied grant, nor the grantor in the case of reservation implied in the grant, can be deprived of this consideration and be compelled to pay anew for the way of necessity, under the provisions of the Code referred to. It is no answer to the remedy sought by the plaintiff to say that he can have a private road by paying for it. Those provisions of the Code are not applicable to a case of pre-existing right. They contemplate compensation to the party through whose lands the road is sought and are applicable only to an original demand, not based upon any pre-existing and complete right. It was expressly held in Collins v. Prentice, 15 Conn. 39, that a similar statute authorizing select men to lay out private ways, does not change the common law regarding ways of necessity. The Court there said there was nothing expressed in the statute, and nothing by implication, authorizing such construction, and that private ways may be needful and proper which are not strictly ways of necessity. In Shipley v.Caples, 17 Md. 183, JUDGE TUCK strongly intimates the same view, and if the constitutionality of our statute be assumed, as to which we express no opinion, we do not hesitate to adopt the construction given to the Connecticut statute.

Since the case of Mitchell v. Seipel, 53 Md. 269, in which the English and American authorities upon the doctrine of implied easements, both by grant and reservation, were most ably and exhaustively reviewed by the late JUDGE MILLER, it has been settled in this State, that ways or easements of necessity constitute an exception to the general rule that if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant, but it is also settled that mere convenience or usefulness will not be sufficient. The necessity must be imperative and absolute. In the later case ofBurns v. Gallagher, 62 Md. 472, CHIEF JUSTICE ALVEY in referring to Mitchell v. Seipel, as laying down the correct rule, says: "It is only in cases of the strictest necessity, andwhere it would not be reasonable to suppose that the partiesintended the contrary, that the principle of implied reservation can be invoked." But to suppose that John Jay intended to relinquish all right of way to "Horner's Fishery," and to extinguish the right of way he was then actually using under a claim by prescription, and to suppose that Baker understood he intended so to do, would be a most unreasonable supposition, and one neither supported nor suggested by any evidence whatever. Upon the evidence before us we cannot hesitate to find the existence of strict necessity for the way claimed to be reserved.

It was suggested, however, that the warranty in the deed from John Jay to Baker would avoid the operation of the rule, but we cannot agree with this suggestion. In Carbrey v. Willis, 7 Allen, 364, the Supreme Court of Massachusetts said, "Where there is a grant of land by metes and bounds, without express reservation, and with full covenants of warranty against encumbrances, we think there is no just reason for holding there can be any reservation by implication, unless the easement isstrictly one of necessity." And in Brigham v. Smith, 4 Gray, 297, the same Court said: "Is the rule affected by the fact that the grantor conveyed with deed of warranty? We think not. If the way were expressly reserved, the covenants in the deed would apply to the premises granted, that is, an estate with a right of way reserved or carved out of the fee. With the right of way reserved in the present case, the law does for the parties the same thing, and the covenants apply to an estate with this way of necessity reserved." These decisions are in accord with the spirit and intent of our own decisions holding that a warranty cannot enlarge an estate, and that a covenant of warranty should only be held to assure the precise estate granted in the deed, the grant being qualified and restricted by the reservation, whether express or implied. Universalist Society v. Dugan,65 Md. 470; Hopper v. Smyser, 90 Md. 384.

But it was further contended, conceding for the purpose of argument the correctness of the view we have just expressed, that the right of way reserved by legal implication in John Jay's deed to Baker, cannot be extended beyond his life-estate and made to enure to the benefit of the plaintiffs who do not derive their title from him, but through the wills of their aunts, the Misses Smith, and this position we think is sound. The only reservation necessary to be implied in John Jay's deed, was of an easement co-extensive in point of time with his estate. A right of way of necessity is suspended until the necessity for its use arises, and ceases when the necessity for its use ceases. Pierce v.Sellock, 18 Conn. 321; Seeley v. Bishop, 19 Conn. 134. Or, as expressed in Oliver v. Hook, 47 Md. 309, "The way of necessity is only provisional, for it is only brought into existence from the necessities of the estate granted (or reserved) and continues to exist only so long as there may be necessity for its use." As respects the estate of John Jay in "Horner's Fishery," which was a life-estate only, the necessity for its use ceased with his death, and thereupon the right reserved by him was extinguished. Whitlock's case, 8 Coke's Rep. 70 and 71;Hall v. Hall, 66 Miss. 35.

But the plaintiffs were the owners under their aunts' wills, of the reversion both in "Horner's Fishery" and "Mould's Success," and while conveying to their father their reversion in "Mould's Success," they retained their reversion in "Horner's Fishery," and the same legal implication which imported into their father's deed to Baker, the reservation of a way of necessity to "Horner's Fishery" for the benefit of his life-estate, imports into their deed to him a like reservation of a way of necessity for the benefit of their reversion. Its use was suspended during their father's life-estate, which was served by his own reservation, but it was brought into being by the necessities of their estate, when their father's life-estate was extinguished, and their reversion fell into possession. Oliver v. Hook, supra. The defendant being in privity of estate with, and taking his title from their father, the reservation implied in favor of the plaintiffs against the father equally affects the defendant.

It results from what we have said, that the injunction should not have been dissolved, but should have been made perpetual. The decree of the Circuit Court will, therefore, be reversed, and the cause remanded that a decree may be made accordingly.

Decree reversed, with costs to the appellant above and below,and cause remanded.

(Decided December 13, 1900.)