German Savings & Loan Society v. Gordon , 54 Or. 147 ( 1909 )

Opinion by

Mr. Chief Justice Moore.

1. The question to be considered is whether or not a right to use a passageway was impliedly granted by the mortgage, so that, upon the foreclosure thereof and a sale and conveyance of the premises, an easement became appurtenant thereto. An easement is a right in one person to do certain acts on another’s land, or to compel such other to refrain from doing certain acts thereon. Tiffany, Real Property, p. 677.

2. As Mrs. Gray placed the stairs.and walk on her own land, the legal title to which she retaind for that purpose, her authority to use the way cannot be denominated an easement within the strict definition of that word. The owner of an entire tract of land, or of two or more adjoining parcels, may so employ a part thereof as to create a seeming servitude in favor of another portion to which the use becomes appurtenant. Lampman v. Milks, 21 N. Y. 505. Such use is tantamount to an easement at will, so long as the unity of ownership continues. Elliott v. Rhett, 5 Rich. Law (S. C.) 405 (57 Am. Dec. 750, 759). The servitude referred to is known as a quasi easement. Tiffany, Real Property,.'§ 315. “The servitude of the civil law,” say Mr. Chief Justice Lewis, in Kieffer v. Imhoff, 26 Pa. 438, 442, “has a much wider signification than the easement of the common law comprehending many rights, which in the latter fall under the division of profits a prendre.” Though there is a distinction between the terms adverted to, the word “servitude” where employed in this opinion will be used as synonymous with the phrase “quasi easement.”

3. When the quasi-dominant tenement is conveyed, without an express reference in the deed to the servitude, the quasi easement is occasionally held to .have been impliedly granted, and at other times not to have passed, depending upon the nature and character of the use imposed upon the quasi servient tenement by invoking the presumption that the parties contracted with reference to the conditions of the property at the time of the sale, and that the grantor intended to convey a right to use the quasi easement, and that the grantee reasonably expected to take and hold such right. 10 Am. & Eng. Enc. Law 422; John Hancock M. L. Ins. Co. v. Patterson, 103 Ind. 582 (2 N. E. 188: 53 Am. Rep. 550).

In Phillips v. Phillips, 48 Pa. 178 (86 Am.Dec. 577,580), in speaking of a quasi easement, which survives a severance of the tenements by a conveyance of the quasi dominant estate, and which servitude passes by implied grant, Mr. Justice Thompson observes: “It is not to be understood by this doctrine that any temporary convenience adopted by the owner of property is within it. By all the authorities it is confined to cases of servitudes of a permanent nature, notorious, or plainly visible, and from the character of which it may be presumed that the owner was desirous of their preservation as servitudes, evidently necessary to the convenient enjoyment of the property to which they belong, and not for the purpose of mere pleasure.” The courts' of the common law, borrowing the terms from the Code of France, recognize, inter alia, the classification of servitudes into continuous and discontinuous, in defining which a text-writer says:

“Continuous are those of which the enjoyment is or may be continual without the necessity of any actual interference by man, as a water spout or a right of light or air. Discontinuous are those the enjoyment of which can be had only by the interference of man, as rights of way, or a right to draw water.” Washburn, Easements (2 ed.), § 13. “The test of continuousness,” says a text-writer, “is that there is an alteration or arrangement of a tenement which makes one part of it dependent in some measure upon another. This alteration or arrangement must be intended to be permanent in its nature.” Jones, Easements, § 143.

It is generally held that, upon the conveyance of a quasi-dominant tenement, a quasi easement appurtenant thereto which is continuous passes by implied grant. 14 Cyc. 1168. Where the owner of land makes one part of it servient to another by an obvious and reasonably permanent alteration, and conveys the dominant part, his grantee takes such portion benefited by the easement which the change effected. Cihak v. Klekr, 117 Ill. 643 (7 N. E. 111) ; Kelly v. Dunning, 43 N. J. Eq., 62 (10 Atl. 276) ; Simmons v. Cloonan, 81 N. Y. 557. An author states this legal principle as follows:

“The rule is general that, where one conveys a part of his estate, he impliedly grants all those apparent or visible easements upon the part retained which wére at the time used by the grantor for the benefit of the part conveyed and which are reasonably necessary for the use of that part.” Jones, Easements, § 129.

It is held by some of the state courts of last resort that the grantee of a quasi-dominant tenement does not take by implied grant a continuous and apparent quasi easement, except in cases where such servitude is a necessity. 14 Cyc. 1168. The weight of authority, however, supports the doctrine that “reasonable necessity” is the proper gauge for determining whether or not the servitude passes by implied grant. 10 Am. & Eng. Enc. Law (2 ed.), 424; Tiffany, Real Property, § 317.

5. The rule generally obtains that a discontinuous quasi easement does not pass upon a conveyance of the dominant tenement, unless the deed is sufficient in form expressly to create a servitude de novo. 14 Cyc. 1168; Jones, Easements, § 145; Kelly v. Dunning, 43 N. J. Eq. 62 (10 Atl. 276. An exception to this rule is recognized where the quasi easement consists of a formed or an inclosed road or way. Jones, Easements, §§ 254, 265. Thus a lane evidenced by fences, and used as a private way in connection with a quasi-dominant tenement, was held by the Supreme Court of Pennsylvania to have passed as an appurtenant upon a severance of the premises by an implied devise of the servitude. Phillips v. Phillips, 48 Pa. 178 (86 Am. Dec. 577). The deviation from the general rule adverted to has been followed by the court which first formulated the exception. Overdeer’s Adm’r v. Updegraff, 69 Pa. 110, 119. In that case, though the easement was specifically mentioned in the grant, the court, referring to the servitude, remarks: “But if there had been no express reservation of the right to the use of the alley in the conditions of sale, and in the deed executed and delivered to the purchaser, the latter would have taken it subject to the servitude imposed upon it by the decedent for the use and benefit of the occupants of the adjoining lot. It was a continuous and apparent easement, and the law is well settled that in such a case the purchaser, whether at private or judicial sale, takes the property subject to the easement.” It will be observed from the language last quoted that the word “continuous” is used to qualify the word “easement.” As the servitude there referred to was an alley, it is difficult to understand how the way could have been designated as “continuous.” . That part of the opinion set forth herein was evidently not necessary to a decision of the question involved. In Cannon v. Boyd, 73 Pa. 179, 181, land that was subject to a mortgage was platted by the owner of the premises who built on two adjoining lots, on one of which was an alley that was used in connection with the other lot. The land was sold in distinct lots under the mortgage, and it was determined that the first lot was sold subject to the use of the alley, although no reference was made to it in the sheriff’s deed. In deciding that case,' Mr. Justice Williams, speaking for the court, says: “Where a continuous and apparent easement or servitude is imposed by the owner on one portion of his real estate for the benefit of another, the law is well settled that a purchaser at private or judicial sale, in the absence of an express reservation or agreement on the subject, takes the property subject to the easement or servitude.” It will be seen that the word “continuous” is again used by that court to qualify a servitude which was discontinuous. Though the cases which thus follow the authority of Phillips v. Phillips, 48 Pa. 178 (86 Am. Dec. 577, 580), relate to ways, and support the principal case, the use of the word “continuous,” to which attention has been called, would ordinarily seem to weaken the exception originally recognized.

It is believed, however, that the two later decisions adverted to are based on the facts involved, and not on a misconception of the legal principle applicable thereto, and that the word “continuous” was inadvertently used. It is possible that such word was employed to express the idea that the way had been continuously used, and not to indicate a “continuous” quasi easement within the commonly accepted meaning'of that term. If so, the word was inaccurately used, and the conclusion reached in the two cases cited is compatible with the exception noted in the original case. It may be that the word “continuous” as thus employed was used as a synonym for “apparent.” Such meaning has been given to the terms. Thus in Fetters v. Humphreys, 18 N. J. Eq. 260, 262, in referring to (the subject, it is said: “A privilege or right attached to one tenement or parcel of land to enjoy some benefit in or over another tenement or parcel, is called an easement of the dominant tenement, to which it belongs, and a servitude upon the servient tenement or that in which it exists. These easements are either ápparent and continuous, or not so. Apparent or continuous easements are those depending upon some artificial structure upon, or natural formation of, the servient tenement, obvious, and permanent, which constitutes the easement or is the means of enjoying it. As the bed of a running stream, an overhanging roof, a pipe for conveying water, a drain, or a sewer. Non-apparent or non-, continuous easements are such that have no means specially constructed or appropriated to their enjoyment, and that are enjoyed at intervals, leaving between these intervals no visible sign of their existence, such as a right of way, or right of drawing a seine upon the shore.” If the interpretation thus imparted be correct, it follows that there is no inconsistency in the Pennsylvania cases, to which attention has been called. In Martin v. Murphy, 221 Ill. 632 (77 N. E. 1126), the syllabus is as follows: “Where the owner of several lots having no alley at the rear builds a walk, making a passageway from the inside lot across the others, upon the conveyance by such owner of one of the lots without reference to the passageway across it being made in the deed, an easement of passage becomes at once appurtenant to the other lots if the marks of the burden be open and visible, and passes with such lots whether mentioned in the deeds of conveyance or not, and each subsequent purchaser takes subject to the easement in favor of the other lots, as it is apparent from an inspection of the premises at the time of the purchase.” In that case the quasi easement was bounded on one side by a brick wall and on the other by a fence. A door indicated the entrance to the way which servitude was first evidenced by a plank walk, but later relaid with cement. Other gates swung across the passage, marking the boundaries of the several owners of the property as divided by their grantor. It was there ruled that the way was reasonably necessary and sufficiently indicated to impose on the parties purchasing the property, notice of the existence of the quasi easement. The Supreme Court of Illinois, after calling attention to its own decisions relating to discontinuous easements that pass by implied grant, makes the following observation: “There is a conflict among the authorities outside this State as to whether the principles of law which we have above stated are applicable to a case involving a right of way. That no such distinction exists in this state between a right of way and other easements is apparent from an examination of the cases above cited, as the controversy in most of them was in regard to the existence of a right of way.” In Baker v. Rice, 56 Ohio St. 463, 477 (47 N. E. 653, 656), a way was held to have passed by implied grant upon severance of the quasi dominant and servient tenements. In deciding that case Mr. Justice Minshall says: “But it is claimed that only such easements as are termed ‘continuous’ will pass by implication in a grant, and that such as are termed ‘discontinuous’ will not. This is a distinction of the civil law, and has been incorporated in the law of some of the states, particularly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers. The latter require the intervention of man in their use, such as ways. The distinction is somewhat arbitrary, and is not uniformly adopted, as will appear from the cases cited. The better rule, and the one now more generally adopted, is not to consider the particular kind of easement, but whether it is apparent, designed to be permanent, and is reasonably necessary to the use of the premises granted.” We are unable to discover any valid reason for a distinction in the rules of law applicable to servitudes depending upon whether they are continuous or discontinuous, except in the matter of the greater conspicuity which the former usually affords. An artificial ditch .in which water regularly flows must necessarily be a constant reminder to all .beholders of the changed condition of the surface of the earth whereby the dominant tenement is drained or irrigated by the conduit which is appurtenant thereto. McDougal v. Lame, 39 Or. 212 (64 Pac. 864). Water thus flowing through lands and necessary for their use passes as an appurtenant with a conveyance of the premises. Simmons v. Winters, 21 Or. 35 (27 Pac. 7: 28 Am. St. Rep. 727).

A discontinuous quasi easement when evidenced in a similar substantial manner ought to pass by implied grant as an appurtenant to the dominant tenement when the latter is severed by a conveyance thereof. The reason for this deduction is ably stated by the court in Phillips v. Phillips, 48 Pa. 178 (86 Am. Dec. 577, 581), as follows: “It may be granted that the continuance of drains, water pipes, and mill races may more distinctly indicate their permanent and essential nature than a mere private way; but, when the permanency of the way is proved, confessed, or not disputed, this difference vanishes. They stand on the same footing.”

6. In the case at bar, though the plaintiffs’ tenants can pass over its own land across lot 8 to Corbett street, so that the passageway is not an absolute necessity, we are satisfied that the stairs and walk as laid by Mrs. Gray serve as a more convenient way, and believe them to be reasonably necessary to the enjoyment of the property at the time the mortgage was given, and as the quasi easement across Gordon’s land was fenced on the north and inclosed on the south by the north wall of his house, and by the fence extending from the northwest corner of his dwelling to Corbett street, the passageway was apparent, being indicated on the ground with such a degree of permanency as to afford notice that its existence was designed to be permanent; and in our opinion it passed as an appurtenant by the implied grant.

It follows from these considerations that the decree should be affirmed; and it is so ordered.

Affirmed.