Quimby v. Straw , 71 N.H. 160 ( 1901 )

There are two reasons why the plaintiff had no way of necessity, as claimed by him, over the stairways and passageways in the portion of the building upon the defendants' land: (1) There was no necessity for such a way. The plaintiff's land adjoined a public street on one side, and after the defendants erected the wall in the third and fourth stories of the building the plaintiff constructed stairways in his portion of the building between those stories and the street. (2) There was no grant by an owner of both lots from which the grant of a way of necessity could be implied. "A way by necessity is founded on an implied grant. When a person grants land to which there is no right of way except over his own land, or retains land which is inaccessible except over the land which he conveys, a right of way is presumed to have been granted or reserved. But without a unity of ownership there will be no way of necessity." Ellis v. Association, 69 N.H. 385. The oral agreement between the owners of the lots, by which the block was erected according to the plan adopted, was not a grant of land or any interest in land, and so was not a sufficient foundation for the implication of a way necessity.

An easement of a right of way over the stairways and passageways in question could have been acquired by the plaintiff only by grant or by prescription. Wash. Ease. 5, 6, 18, 28. So far as appears, there was no express or implied grant of such an easement. Whether the stairways, etc., were used by the plaintiff and his grantors in a way and for a sufficient length of time to create an easement by prescription, is a question of fact which was decided adversely to the plaintiff in the superior court, and is not here for consideration.

The only right the plaintiff and his grantors had to use the stairways and passageways was that acquired by a parol license from the defendants and their grantors. The license, so far as it was unexecuted, was revocable at the pleasure of the defendants; and they revoked it by erecting the wall in the third and fourth stories of the building. Houston v. Laffee,46 N.H. 505; Dodge v. McClintock, 47 N.H. 383; Blaisdell v. Railroad,51 N.H. 483; Batchelder v. Hibbard, 58 N.H. 269.

The plaintiff has no right to reimbursement of money expended providing the stairways and passageways, for it does not appear that he expended any.

It is assumed that the water-closets were connected with the building in such a way that they became a part of the realty, unless prevented by an agreement of the owners. The assent of the defendants to the placing of the closets in their portion of the building at the joint expense of themselves and the plaintiff, for the use of their tenants, would not of itself render the closets personal property. To render them personal property it would be necessary that there should be an agreement or understanding that they were to be regarded as such, and that the plaintiff, as one of the joint owners, was to hold an interest in them separate from the real estate. Caswell v. Hill, 47 N.H. 407, 414. It does not appear that there was any such agreement or understanding, and consequently the closets became the property of the defendants as parts of their real estate.

Without an agreement, the plaintiff cannot recover anything of the defendants on account of his contribution to the expense of putting in the closets. The fact was found in the superior court that there was no agreement of this kind, express or implied. It has not been suggested that the finding was not justified by the evidence before the court.

Exceptions overruled.

All concurred.