Burling v. Leiter , 272 Mich. 448 ( 1935 )

I cannot concur with Chief Justice POTTER in holding that the defendants have not an easement or right of way over the driveway in question.

Sanford street in the city of Muskegon runs north and south. In 1879, Walter Burling and his wife became the owners of a tract of land having a frontage on the street of six rods and a depth of eight rods. They erected three houses thereon, all fronting on Sanford street. The one at the south was built close to the boundary line, and was 15 feet in width. There was a space of about 15 feet between it and the one next to it towards the north. The one further north was occupied by them, and the other two were rented by them.

In 1885 they sold to Zalmon D. Hinkley and wife the south 22 feet of their tract, on which stood the house 15 feet in width above referred to. The Hinkleys sold to Thomas W. Lee and his wife, and they to William R. Emmens and his wife, and they to Charlotte McDonald, who became the owner in 1897. Soon thereafter a plat of the entire tract was made and recorded. In it but 20 feet of the frontage of the land owned by her was platted as lot 11. The attention of the defendants was called to this error before the hearing in the circuit court, and they were permitted to put in evidence a deed of the two feet from her to the defendant Susie Leiter, who later had acquired title to lot 11, and amend their answer to comply therewith. This was done over the objection of plaintiff's attorney, but I find no error in the action of the court as lot 11 was thereafter always treated as containing the entire 22 feet.

An outside door had been placed on the north side of the house on this 22 feet, and, to reach it and gain access to the inside of the house through it, a small platform had been built in front of it with steps leading thereto. The knowledge of the witnesses who testified to its being so placed and the use of the driveway by the occupants of the house was limited to about 36 years before the hearing. An engineer, called by plaintiff as a witness, who had made certain measurements of the lots, testified on cross-examination:

"The building on lot 11, including the porch, covers not only the entire width of lot 11, but projects to the north two and three-tenths feet. I do not know how long that porch has been on the house. It looks as though it was built about the same time as the house was. I didn't pay any attention to the brick that holds it up. * * *

"There is no alley in that block. You would have to walk through the house. The house is 15 feet wide and with the porch on it it covers the entire width of the lot."

It thus quite clearly appears that at the time Mr. and Mrs. Burling sold to Mr. and Mrs. Hinkley there was no way in which a vehicle of any kind could reach the rear of the land conveyed except by passing along the 15-foot space which separated the house on it from that on the land to the north of it.

The trial court in his opinion stated that at the request of counsel he had viewed the premises. He also said:

"When Burling sold to Hinkley, the rights of the latter in the drive or passageway became fixed as an easement appurtenant to the estate granted, and passed thereby to Hinkley and later to the successive grantees, as I have indicated above, accessorial to the beneficial use and enjoyment of the granted premises."

I think he was right in so finding and in entering the decree based thereon. The facts clearly establish that when the Burlings erected the houses on what are now lots 10 and 11 space was left for a passageway between them on the south side of lot 10 in order that access might be had to the rear part of lot 11; that this passageway was reasonably necessary to the use of this lot and the house thereon for residence purposes, and that an easement was thereby created by implication which inured to the benefit of the Hinkleys and all subsequent owners of the land conveyed to them, and that the plaintiff as owner of lot 10 took title subject thereto.

"An easement is a privilege without profit which one has for the benefit of his own land in the land of another. * * * It is essential to an easement that there be two distinct tenements or estates, a dominant one to which the right belongs, and a servient one upon which the obligation is imposed."Hasselbring v. Koepke, 263 Mich. 466, 479 (93 A.L.R. 1170).

Counsel for the plaintiff concede in their brief that it may be created by implication.

In Smith v. Dresselhouse, 152 Mich. 451, 454, this court said:

"It is a general rule of the law of easements that where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains."

See, also, Bean v. Bean, 163 Mich. 379, and Flax v. MutualBuilding Loan Association of Bay County, 198 Mich. 676.

"The general rule is that where during the unity of title an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use and is reasonably necessary for the fair enjoyment of the other, then upon a severance of such ownership there arises by implication of law a grant of the right to continue such use. The application of the rule must depend upon the nature, arrangement and use of the estate, the relation of the parts to each other, and the existing degree of necessity for giving such construction to the grant as will give effect to what may be supposed to have been, considering the manner of the use, the reasonable intendment of the parties; the underlying principle in such cases being that included in the grant are all such privileges and appurtenances as are obviously incident and necessary to the fair enjoyment of the thing granted, substantially in the condition in which it is enjoyed by the grantor, unless the contrary is provided." 9 R. C. L. p. 755.

"The degree of necessity is such merely as renders the easement necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made." 9 R. C. L. pp. 763, 764.

"The easement as an incorporeal hereditament passed to each owner of the land without specific mention thereof in conveyances. Being attached to the estate, and not to the person of the owner of the dominant estate, the easement followed the estate into the hands of subsequent purchasers without specific mention in deeds." Greve v. Caron, 233 Mich. 261,265.

Counsel for the plaintiff stress the fact that Mrs. Leiter testified that she at one time told the defendant Kushnak that she "didn't own the drive." She, however, stated that when she bought the lot she "claimed to own it," but was told by plaintiff's son that she did not. Of course, she does not own it. It is not included in her deed. The claim here made is not of ownership, but of an easement, created by implication which entitles her to the use of it in common with plaintiff's tenant on lot 10. That it has been so used, with slight interruptions, for more than 35 years, is clearly established.

In my opinion the decree should be affirmed, with costs to appellees.

BUSHNELL, J., concurred with NELSON SHARPE, J.