Bonelli Bros. v. Blakemore , 66 Miss. 136 ( 1888 )

Cooper, J.,

delivered the opinion of the court.

In the year 1849 one Emanuel became the owner of a part of square 258 in the city of Vicksburg, which square is bounded on the east by Washington street, and on the north by Grove street. His lot fronted on Washington street and extended back one hundred and three feet on Grove street. On this lot he erected two storehouses, each fronting on Washington street and extending back eighty-eight feet, leaving a vacant space in rear of the buildings of fifteen feet. The declivity from Washington street westward is so great that what is the basement of the buildings in front is above ground-, forming the lower story in rear. The buildings are, therefore, three stories in rear, and two stories and a basement in front. One of these buildings extended along Grove street and there was a door in the side opening out on Grove street by which access was had to the lower story or cellar. This is designated as lot 91 in the pleadings and evidence. In the rear of the other building (93) there was a door leading from the first floor to the vacant space. In front there was in each building a stairway leading to the basement; the two buildings had one common hall. In 1859 Emanuel made contemporaneous conveyances, one to Duff, Green & Co., of lot 93, the other to Cobb, Manlove & Co., of lot 91. The conveyances were of the lots by metes and bounds describing the land on which the respective buildings stood and the vacant space in rear of each, granting to each purchaser the lot and its “appurtenances.”

Cobb & Manlove believed that by reason of the situation of the lot conveyed to Duff, Green & Co., its owners had a right of way across lot 91 to reach Grove street, and Duff, Green & Co. being, under the same impression exercised the privilege of passing across said' lot so long as the two firms occupied the buildings. In 1859 or 1860, each firm, desiring to enlarge its building, the second and third stories wei*e extended back to the rear of the lot, but an archway was cut in the wall of building 91 where the vacant space opened out on Grove street, and a corresponding arch was also cut in the partition wall, the lower story not being extended in either building. Duff, Green & Co. still had access to the first or cellar floor, by driving drays, etc., through the archways to the rear of their building. In 1863 lot 91 was bought by one Barbour, who was examined as a witness and testified that at that time Duff, Green & Co., having engaged in a business that did not require the use of the cellar, made no attempt to use the way across lot 91, and that they set up no claim to a right so to do. Some time after this purchase and occupancy by Barber he built a stable in the alley way on his lot, the arched way on Grove street being used as the doorway to his stable. Things remained in this condition until 1871, when another occupant having moved into lot 93, with whom Barber was not on friendly terms, he closed up the archway in the partition walls by nailing plank across the same. After this, the appellant, Bonelli, became tenant of both buildings and tore out the stable erected by Barber and built another one which was partly on lot 91 and partly on lot 93. Bonelli has now become the owner of lot 91 and has torn down the stable erected on both lots by himself and nailed up the archway in the partition wall. Complainants, who are the owners of lot 93, exhibited the bill in this cause to enjoin him from obstructing the way which they claim to have across lot 91 to Grove street.

There is no distinct averment in the bill that the way claimed ever was used by Emanuel during his ownership of the property, but since a decision against complainants on this ground would probably result in an amendment of their bill, and since, in any event, they are not entitled to the relief asked, we deal with the cause as though the allegation of such use had been specifically made.

Complainants contend that a right of way exists, first, by implied grant in the conveyance from the common owner to Duff, Green & Co., or if this point be decided against them, then that Duff, Green & Co., under whom they claim, secured the right by parol from Cobb, Manlove & Co., and if mistaken in this, then they claim that the right has been acquired by prescription.

The second and third propositions may be disposed of in a word. A way is an incorporeal hereditament, and since livery of seizin could not have been made of it at common law, it could only be created by deed or other writing; it is therefore said to lie in grant. Greenleaf’s Cruise on Beal Prop. tit. Deed, ch. 4, §§ 35 and 36.

But a right of way is an interest in lands, and a grant by parol is obnoxious to the statute of frauds. Thompson v. Gregory, 4 John. 81; Richter v. Irvin, 28 Ind. 27 ; Hall v. McLeod, 2 Met. (Ky.) 98 ; Kerr on Statute of Frauds, § 718.

The authorities cited by counsel for appellees are cases of dedication of public ways, and rest upon the doctrine of estoppel in pais. They are not required to be in writing.

The evidence does not support the claim of a way by prescription. It does not appear that the right was exercised for an uninterrupted period of ten years at any time.

The proposition most confidently advanced by appellees is that the way passed to Duff, Green & Co. either as a part of the land conveyed or as a necessary incident thereto by implied grant, or that it passed by use of the word “ appurtenances ” in the deed.

The use of the word “ appurtenances ” adds nothing to the force or effect of the deed. Emanuel was the owner of the whole prop•erty, and as owner exercised the right of passing across one part in use of the other; but the right was not an easement appurtenant to the land, for no man can have an easement in his own property. If Emanuel, as owner of this property, had also enjoyed a right to pass over the property of another person, such right would have been an easement, and would have passed by the grant of the property and its appurtenances. But the use of that word proper to convey an easement already existing is not sufficient to evidence .a purpose to create an easement when none existed before. If by the conveyance to Duff, Green & Co. an easement was granted at .all over the other lot, it must be implied from the general grant .and not from the use of the word “ appurtenances.” Wally v. Thompson, 1 B. & P. 375 ; Oliver v. Hook, 47 Md. 301 ; Gayetty v. Bethune, 14 Mass. 49; Parsons v. Johnson, 68 N. Y. 62.

The principle from which the doctrine of implied grants of easements over other lands of the grantor springs is said to be found in the maxim that “ one shall not derogate from his grant,” and the kindred one that the purchaser takes the land bought, and whatever right in the hands of the grantor as is necessary to its enjoyment.

If one sells to another a tract of land surrounded by other lands of the grantor, a right of way across such other land is a necessity to the enjoyment of the land granted, and is implied from the grant made. And to this extent are all the authorities.

So when a conveyance is made of real estate by designation and not by metes and boundsj as the manor of “A,” or as Black-acre, or when property devoted to a trade or business, as a “ mill ” or “ tan-yard,” is conveyed by words describing the property as such, other land than that covered by the building or curtilage, that by its use has become essential to the enjoyment or use of the buildings, passes to the grantee. But land cannot be appurtenant to land, and such other lands pass not as appurtenant or incident to thing granted, but as a parcel of the thing itself.

In the case of a way by necessity, it is implied as an incident to the thing granted; when the conveyance is of the land by designation, not by metes and bounds, the connected lands pass, not strictly by implied grant, but as included as a part of the thing expressly granted. The authorities run in an almost unbroken current in support of the right of the grantee under the above-named circumstances, but some diversity is encountered when we pass ídío the field of implied grants of things not necessary (strictly necessary), but only highly convenient, or essential to the full enjoyment of the land bought.

The owner of a tract of land, a part of which he afterwards grants to another, has not, of course, any easement in any part of his land while he owns the whole; he deals with it as owner and may subserve any portion to the use of the other, and may change the arrangement at his will; it is only where such arrangement is apparently permanent and intended so to be, and while so remaining the owner grants a part of the premises, that the question of ■easement or servitude can arise. The condition of the whole when the severance is made, the nature of the easement claimed to be granted or reserved by implication, its obviousness and continu■ousness, are the tests usually applied to determine the existence or non-existence of the grant or reservation.

The rule seems to be of very general recognition that an easement not of strict necessity does not pass by implied grant, unless it be apparently permanent, obvious, and continuous.

The word continuous in the sense here used seems to have ac■quired a somewhat unusual significance within the meaning of the rule. It is not sufficient that the thing may be continuously subject to use or enjoyment, but that it may be used without the intervention of the act of man.

A continuous easement is one, say the authorities, which may be ■enjoyed without any act on his part, as a water spout which discharges the water whenever it rains; a drain by which surface water is carried over land, windows through which light and air ■enter, etc.

A non-continuoüs easement is one to the enjoyment of which the act of the party is essential, and of this class a way is the most usual. Lampman v. Milks, 21 N. Y. 505; Poden v. Bastard, Law Rep., 1 Q. B. 156; Providence Tool Co. v. Corliss Steam Co., 9 R. I. 564; Elliott v. Rhett, 5 Rich. Law 405; Duston v. Ledden, 23 N. J. Eq. 64; note to Elliott v. Rhett, 57 Am. Dec. 750.

The decided weight of authority, both English and American, is to the effect that an .easement, not of strict necessity, will not pass by implied grant, unless it be apparent and continuous. Whally v. Thompson, 1 Bos. & Pul. 371 ; Pheysey v. Vickery, 16 W. & M. 484; Goddard on Easements 266 et seq.; Oliver v. Hook, 47 Mo. 302; Fetters v. Humphreys, 19 N. J. Eq. 472, and cases cited above.

In Pennsylvania a way fenced out and devoted exclusively to purposes of travel seems to be treated as a continuous easement. Phillips v. Phillips, 48 Penn. St. 178 ; and an alley-way, McCartey v. Kitchenum, 47 Penn. St. 239. It is probable, however, that in that state the decisions go further, and establish the rule that a way, commonly and usually used and highly convenient, would pass by implied grant. R. R. Co. v. Jones, 50 Penn. St. 417. It was also suggested in Watts v. Kelson, L. R., 6 Ch. Appeals 186, that a paved road-way might pass by implied grant. In Appleton v. United States, Judge Story, not adverting to the distinction between continuous and non-eontinuous easements, held that where a window, opening upon a porch, had been in use as a way by the grantor across the porch to the street, an easement passed by implied grant, not only to light and air, but to the way across the porch. The authorities relied on by him are cases in which continuous easements had been held to pass. It may be noted that the cases cited by him from Massachusetts have been practically overruled in that state by subsequent cases. The law seems to be in that state now that no easement, whether continuous or non-continuous, will pass by implied grant, unless it be one of necessity. Keats v. Hugo, 115 Mass. 204.

Since the way claimed by complainant is not one of necessity, and is not of a continuous nature, it did not pass by the conveyance to Duff, Green & Co., and, of course, has not been acquired by any of the subsequent conveyances under which complainants derive title. The complainants are, therefore, not entitled to the relief sought, wherefore,

The decree is reversed and bill dismissed.