New York, N.H. H.R. Co. v. Russell , 83 Conn. 581 ( 1910 )

Upon the facts recited in the above statement of the case, the trial court held, in effect, that Cortland D. Cole, as a joint tenant with his wife of the land in question, and as tenant by the curtesy of her interest, and acting as her agent therein, had conveyed to the plaintiff Power Company a right to construct and maintain the described pole and transmission lines over said premises during his life, and that the defendant Helen A. Russell was chargeable with notice of such conveyance, and thereupon enjoined the defendants from removing or interfering with said poles and wires during the lifetime of said Cortland D. Cole. The plaintiffs appeal upon the ground that the injunction should have been made perpetual, and the defendants appeal upon the ground that no injunction should have been granted.

The controlling questions in the case are these: (1) What rights did the New Milford Power Company acquire from Mr. and Mrs. Cole? (2) Was the defendant Helen A. Russell such a bona fide purchaser of the land that, as against her, equity will not protect, either wholly or in part, the rights acquired by the Power Company from the Coles.

The following are matters of import in deciding the first of these questions: By the deed from Frisbie, in 1882, Mr. Cole and his wife became joint tenants of the land in question, but without the right of survivorship.Phelps v. Jepson, 1 Root, 48; Whittlesey v. Fuller,11 Conn. 337, 340. By his marriage and the birth of his child he became tenant by the curtesy initiate of his wife's land, which is in law an estate for life. 1 Swift's Dig. s. p. 82; Whittlesey v. Fuller, 11 Conn. 337, 340;Sill v. White, 62 Conn. 430, 436, 26 A. 396; Winestine v. Ziglatzki-Marks Co., 77 Conn. 404, 406, 59 A. 496.

The duly recorded deed of Cortland D. Cole of June 2d 1903 (Exhibit A), assumed to convey, and was presumably intended to convey, to the Power Company an easement in fee. By its terms it was a conveyance by the grantor, his "heirs, representatives, and assigns," of a right to the Power Company, "its successors and assigns, to erect and perpetually operate and maintain" at least that portion of the lines of poles and wires as erected and now standing between the point of crossing the Curtis road and the point where they reach the boundary line of the Van Ingen land.

In making the conveyances, Exhibits A and B, Mr. Cole not only acted for himself, but as the authorized agent of his wife, and she "knew of all that he had done and acquiesced in it." Both he and she knew of the construction of all of the lines and their purpose, and she neither objected to it, nor made any claim of ownership in the land.

When it was found that the Power Company could not procure a right of way over the Van Ingen land, Mrs. Cole not only agreed with the Power Company, through the agency of her husband, that it might extend its lines, as it did, from the Van Ingen divisional line to the highway skirting the Shepaug River, but she joined with her husband in the execution of Exhibit E authorizing such extension, and granting to the Power Company, its successors and assigns, the express right "to erect and perpetually operate and maintain" said lines as they had been constructed upon the Cole land, between the Shepaug River and the "stone and dowel" near the Van Ingen boundary; and in said conveyance described said last-named terminal point as "on the line sold by us to the company on June 2, 1903," the date of the execution of Exhibits A and B.

If these facts do not show a legal grant from both Mr. and Mrs. Cole to the Power Company of an easement in fee, or a perpetual legal right to construct and maintain said poles and wires as they have been constructed and operated over the Cole's land since 1903, they clearly show that it was the intention of Mr. and Mrs. Cole to grant, and of the Power Company to purchase, such an easement or right, and they show a right in the Power Company which the Coles would be estopped from disputing, and which a court of equity would restrain them from destroying or injuring. Washburn on Easements (4th Ed.) p. 29; Canfield v.Gregory, 66 Conn. 9, 17, 33 A. 536; Donohue v. El Paso Southwestern R. Co., 214 U.S. 499,29 Sup. Ct. Rep. 698.

For the purposes of this case a bona fide purchaser may be defined to be one who has purchased property without notice of the claims of third parties thereto.Hayden v. Charter Oak Driving Park, 63 Conn. 142,147, 27 A. 232. The answer, therefore, to the second of the above stated questions, depends upon what notice of said claim of the Power Company the facts show Mrs. Russell received before purchasing the land, and whether, notwithstanding such notice, equity will still regard her as in any respect a bona fide purchaser.

The trial court has found that prior to May, 1907, Mrs. Russell had no actual knowledge of the deeds A and B, nor of the existence of the lines of poles and wires. She had driven along the highways from which the lines were readily to be seen. From the described character of the poles and lines and the cut made in the woods, they were as prominent objects as the tracks of a steam railroad built over this land would have been. They were such objects as would be noticed by any reasonably observant person, and especially one contemplating purchasing the property upon which they stood, and what one in the exercise of ordinary care should have observed is generally to be imputed to him as known. Stedman v. O'Neil, 82 Conn. 199, 206,72 A. 923. But it is unnecessary to inquire whether Mrs. Russell ought to have seen them. Her husband, as her agent, conducted the business of purchasing the property for her, and his knowledge regarding the poles and lines was her knowledge. Farmers Citizens Bank v. Payne, 25 Conn. 444, 449. Mr. Russell visited the premises several times prior to the purchase of them by his wife, and observed how the Power Company was occupying the land with their poles and lines, as it had done for more than three years. He saw the poles and lines, all of which were then in use, and as a reasonably prudent man, and a person of "large experience in the purchase of real estate," he must have known that they were for the transmission of electricity, to be used for light or power, and that some one, other than the Coles, engaged in developing or transmitting currents of electricity, had some right to construct these lines, and use them upon the land he was about to purchase. As a result of what Mr. Cole told him, Mr. Russell believed that they were electric light and telephone wires. Neither of the defendants before purchasing the land made any inquiry of any person respecting these lines, or the right of any one to maintain them. Apparently the only act which can be regarded as an effort to obtain information regarding these lines of poles and wires was that of Mr. Russell in commissioning the treasurer of a savings-bank to employ a lawyer to search the records. The lawyer employed either made no search or made an insufficient one. Had the defendants seen, as they should have, the recorded instruments, Exhibits A and B, they would have learned the fact that Mr. Cole had assumed the power (and it was one which Mrs. Cole had in fact authorized him to exercise, and had acquiesced in his exercising and his exercise of which she had confirmed in writing) of granting to the Power Company a perpetual right to maintain two lines of poles and wires over a part of this property, and that the Power Company claimed to have purchased such a right. If one purchases land with notice of an equitable right in a third person, equity regards him as standing, as to such person, in the place of the grantor, and as purchasing the land subject to such equitable charge, even though upon the record the title appears to be clear and the purchaser believes that no such encumbrance exists. Bush v. Golden, 17 Conn. 594,602; Blatchley v. Osborn, 33 id. 226, 233. One who buys land with knowledge that his grantor has agreed to convey a right of way over it to a third party, will not in equity be regarded as a bona fide purchaser, and may be compelled to abide by such agreement; Botsford v. Wallace, 72 Conn. 195, 199, 44 A. 10; Legg v. Horn,45 Conn. 409; Parker v. Nightingale, 6 Allen (Mass.) 341; and ordinarily full and adequate means of knowledge are equivalent to knowledge. Post v. Clark,35 Conn. 339, 342.

In Pomeroy on Equity Jurisprudence (3d Ed., Vol. 2, § 597) it is said: "If, however, it appears that the party obtains knowledge or information of such facts, which are sufficient to put a prudent man upon inquiry, and which are of such a nature that the inquiry, if prosecutedwith reasonable diligence, would certainly lead toa discovery of the conflicting claim, then the inference that he acquired the information constituting actual notice is necessary and absolute"; and again, in § 600, after asking "What facts are sufficient to put the party upon an inquiry," it is said: "Among the facts to which, as evidence, such force has been attributed are: . . . the sight or knowledge of visible material objects upon or connected with the subject-matter, which may reasonably suggest the existence of some easement or other similar right." And see Niles v. Cooper (Minn.), 13 L.R.A.N.S. 1. In Whiting v. Gaylord, 66 Conn. 337,34 A. 85, this court said, in effect, that a purchaser of land had notice of an easement which was apparent to an ordinary observer. In Alderman v. New Haven,81 Conn. 137, 70 A. 626, it was held that in the absence of proof of actual knowledge of the existence of an easement by successive owners of the fee, knowledge would be imputed to them where the possession and use of the land were open, visible and apparent, such as the use of the land for a trunk sewer by means of direct communication with which the land itself and the buildings thereon were drained. In Ely v. Cavanaugh,82 Conn. 681, 685, 74 A. 1122, we held that one who buys land with full notice that another is in possession of and claims personal property thereon, is thereby put upon his inquiry, and chargeable with a knowledge of the rights of such claimant. In Kirby v. Tallmadge,160 U.S. 379, 383, 384, 16 Sup. Ct. Rep. 349, the court says that it is well settled law that "possession, under apparent claim of ownership, is notice to purchasers of whatever interest the person actually in possession has in the fee, whether such interest be legal or equitable in its nature, and of all facts which the proposed purchaser might have learned by due inquiry."

Some of the other cases brought to our attention, in which visible objects were held to be sufficient to direct the attention of a reasonably prudent person to prior rights of a third party and to put the former upon inquiry and so charge him with implied notice, are:Hervey v. Smith, 22 Beav. 299; Davies v. Sear, L. R. 7 Eq. 427; Indiana, B. W. Ry. Co. v. McBroom,114 Ind. 198, 15 N.E. 831; Chicago E. I. R. Co. v. Wright,153 Ill. 307, 38 N.E. 1062; McDougal v. Lame, 39 Or. 212,64 P. 864; Atlantic City v. New Auditorium PierCo., 63 N.J. Eq. 644, 53 A. 99.

It is our conclusion from the facts before us, that more than three years before Mrs. Russell purchased the land in question, the plaintiff The New Milford Power Company acquired the right to erect and maintain these lines of poles and wires across it at the place, and in the manner they have since been visibly and openly maintained and operated, and that equity will regard such right as a perpetual easement; that the defendant Walter Russell had actual knowledge of the existence and operation of said lines before his wife purchased the land in question, and that she is chargeable with the knowledge which her husband had acquired while acting as her agent; that said knowledge was sufficient to put them upon inquiry, and that upon reasonable inquiry they would probably have learned the character, extent, and ownership of the right of the Power Company; that the defendant Mrs. Russell is therefore in no respect a bona fide purchaser as against the plaintiffs, and that the defendants should have been permanently restrained from removing said poles or interfering with such right of the Power Company.

The rulings upon questions of evidence were correct and need no discussion. The conclusion we have reached renders a discussion of the plaintiffs' demurrer unnecessary.

There is error upon the plaintiffs' appeal, and no error upon the defendants' appeal, and the case is remanded with directions to make the injunction perpetual against both defendants.

In this opinion the other judges concurred.