Phoenix Nat. Bank v. United States Security Trust Co. , 100 Conn. 622 ( 1924 )

The defendant claims that it has a right as trustee owner of the pieces E and F, to provide, by means of a passway along the easterly side of piece E, for access to the gangway C B, and to use this gangway in connection with the rear portion of piece F for all purposes to which the gangway may legally be put. The defendant contends that when in 1880, the piece F was by William T. Pratt and others conveyed to William W. Larrabee, and thus severed in title and ownership from piece E, it still had as appurtenant an easement over the gangway. It bases its contention upon the rule that an easement is appurtenant to any part of a dominant estate, and that when it is divided by deed, devise or other legal method, each of the parts resulting from such division may use the easement as far as applicable.

This rule is well established, and no question is made by plaintiff as to its correctness; the controversy between the parties involves its scope and application.

The leading case of Hills v. Miller, 3 Paige Ch. (N. Y.) 254, 257, states the rule as follows: "As the right is annexed to the estate, for the benefit of which the easement or servitude is created, the right is not destroyed by a division of the estate to which it is appurtenant. And the owner or assignee of any portion of that estate may claim the right, so far as it is applicable to his part of the property, provided the right can be enjoyed as to the separate parcels without any additional charge or burden to the proprietor of the servient estate." This case is referred to and the extract above given often quoted in subsequent decisions and by text-writers, as a foundation case and a point of departure in all subsequent discussions upon this general topic. See 19 Corpus Juris, 948; Jones on Easements, § 30; 9 R. C. L. 803, § 59. The English law is the same. Goddard on Easements (8th Ed. 1921) 390.

It is unquestionably the law of this State. Sweeney v. Landers, Frary Clark, 80 Conn. 575, 69 A. 566;Blanchard v. Maxson, 84 Conn. 429, 80 A. 206; AllingRealty Co. v. Olderman, 90 Conn. 241, 96 A. 944.

In Corpus Juris as above cited, the principle as stated in Hills v. Miller, supra, is adopted almost inverbis as a statement of the law, and then by way of explanation, founded on other cases cited, that work expands and explains the expression "so far as it is applicable to his part of the property," by adding, "and it inures to the benefit of the owners of all subdivisions so situated that it can be used."

The position of the defendant involves the claim that the easement persists and inheres in the piece F after subdivision absolutely, unless as to it the easement has been extinguished and negatived by express terms. No case has been called to our attention by counsel, and our examination discloses none that supports this position. Such a claim was made in Dawson v. St. Paul F. M. Ins. Co., 15 Minn. 136. Adopting the excellent summary of that case contained in plaintiff's brief, it appeared therein that there was a rectangular piece of land through which, on the easterly side, a passway ran in a northeasterly and southwesterly direction, and which was called St. Charles Street. Two lots were sold abutting this street, one called the Cavalier Lot and one the Hopkins Lot. On January 22d 1849, Jackson conveyed to Franklin Steele all of the original lot east and west of St. Charles Street excepting the Hopkins Lot and the Cavalier Lot, including St. Charles Street. On August 16th, 1851, Franklin Steele conveyed to Jeremiah Mahoney, a tract of land to the west of the Hopkins Lot and the Cavalier Lot not abutting on St. Charles Street. All the deeds in question referred to St. Charles Street as a boundary or starting point, and each lot was conveyed with appurtenances. Jeremiah Mahoney conveyed his lot to the plaintiff in the case. The court held that a right of way existed in favor of the Hopkins and Cavalier lots which abutted thereon, but not on the Mahoney Lot, not so abutting. The claim made in the case was the bald one of inherent right of way, apart from any necessity, since the Mahoney Lot had a frontage on one side upon another street, and was not dependent on St. Charles Street for access.

The recent case of Cetlin v. Bradford,242 Mass. 434, 136 N.E. 119, decided in 1922, is to the same effect. A partition of certain land in Newburyport was as delineated on a certain plan which showed a division into lots A, B, C and D, and a passageway through the tract was made appurtenant to them, having B and C on one side of it and A and D on the other side. In the opinion the court says: "The trustees under Mackinney's will on April 2, 1908, conveyed parts of lots B and C to Timothy Harrington. The northerly line fixed by the deed was parallel and three feet distant from the northerly end of the building on the lot. The line so determined was distant two feet southerly from the southern line of the way. No reference is made to the way in this deed and as the premises did not abut on it the grantee got no interest in the fee or right thereover." In this case, as in that last noted, the tract conveyed, and in favor of which an easement was claimed, had on another side a street entrance, so that no claim of a way by necessity was involved. The claimed easement was put squarely upon a right of way inhering after a division of the dominant estate in a part thereof not abutting on the way, and was held not to exist.

In Alling Realty Co. v. Olderman, 90 Conn. 241,96 A. 944, there was a question of easement involved in the sale of a tract of land which abutted on the east on a street and on the west upon a passway. The part of the tract fronting on the street was sold with no reservation of a right of way across the remainder of the tract facing on the passway. The grantee, however, had a lot adjoining the tract which he had purchased, known as the Beardsley lot, across which he might reach the passway. The court held that his easement as appurtenant to the tract purchased had not been destroyed, but remained effective by virtue of his ownership of the Beardsley lot, and in its opinion said: "The deed of Kelly to the defendant of the front part of the lot did not, either by virtue of the division or of its detachment from the portion adjoining the passway, destroy the easement as appurtenant to it, or deprive it of the benefit of the easement in so far as there might exist means for its enjoyment. In the present case such means existed through access to the way over the Beardsley lot."

In some States it has been held that an easement appurtenant to a parcel of land must either begin or end upon the land, but this court has held such a pre-requisite not essential, and established availability for use in connection with the dominant estate as the correct test of appurtenance. In Graham v. Walker,78 Conn. 130, 61 A. 98, the opinion states: "An appurtenant way ordinarily does touch the close to and from which it leads, and that it should is commonly essential to its enjoyment; but it is not always thus essential, and when not, the dominant may be separated even at a long distance from the servient tenement." In the case cited the distance between the dominant and servient tenements was covered over a public highway.

From the consideration of all of the cases above cited, there emerges as the true rule for determining the appurtenance of an easement of way in favor of a parcel of land resulting from a subdivision, the existence of the fact of applicability to such part of the subdivided property, a situation so that it can be used in connection therewith. Having regard to the effect of the two cases last cited, we may say that in this jurisdiction the test is availability of the way to the dominant land either by its directly abutting on the same, or by a capacity of reaching it over other land over which the dominant owner has a legal right of passage.

The defendant further claims that the facts in the instant case satisfy the requirement just stated, in that there arose by virtue of the conveyance of piece F in 1880, an appurtenant right of way over the piece E, and that this conveyance did not terminate the easement theretofore obtaining in favor of F which an integral part of the tract Y on Map No. 2.

When such a subdivision occurs as took place in the present case, a part of an original tract which is cut off from physical contiguity to a gangway or passway, can enjoy the easement which it originally had over such a way in three ways: by a specific creation of a new easement of way over the land intervening between it and the existing passway; by such a way arising from necessity; or by a way over such intervening land deriving its validity as an appurtenance implied from use theretofore made of such intervening land in connection with the land cut off by the conveyance. In the deed from Pratt and others to Larrabee in 1880, there is clearly no new easement of way created across piece E in favor of piece F, nor can any way of necessity arise, since the rear part of piece F could be reached from Asylum Street directly over its whole depth, and also there was appurtenant to it the gangway marked I on Map 1. The defendant must, therefore, rely upon an impled easement or, as it is termed in the books, a quasi-easement.

We have in the case of Whiting v. Gaylord, 66 Conn. 337,34 A. 85, an exhaustive and learned opinion by CHIEF JUSTICE ANDREWS in which the topic of quasi-easements is examined, with a very full consideration of American and English cases down to the date of the opinion (1895). The conclusion was reached that an easement not specially mentioned in the conveyance of the land will not arise by implication from prior use of the land in connection with a larger tenement prior to subdivision, unless such use is open, visible, continuous and necessary to the enjoyment of the estate granted, and that an intending purchaser is under no burden or obligation to ascertain the existence of such an easement, for in order for it to be implied it must be open and visible in such a way as to be apparent to an ordinary observer.

There is certainly nothing in the facts appearing in the instant cast to indicate an open, visible, apparent, continuous and necessary enjoyment by the owners of the piece F of a passageway across the southerly side of piece E. On the contrary, it appears that between 1880 and 1885 such additions were made to the buildings on piece E that there remained upon its rear an open space of only about three and one half feet, and that this space was not at any time during its existence used as a passway from piece F to the mutual gangway B, C. To an ordinary observer no passway would be suggested by examining this strip, and if he also observed, as he might, that piece F had a frontage on Asylum Street by which the highway might be reached from any point of its area, and if, in addition to such an examination, he consulted the land records of the town of Hartford and discovered the existence of an easement in favor of this piece over the gangway marked I, the idea of an implied easement of way over the southern part of piece E, would certainly not be obvious or convincing. We therefore conclude that when tract F was sold in 1880 without the express creation of an easement in its favor over piece E, it lost the right which it had as part of the piece Y on Map 2.

The claim that this original right of access to the gangway existing in favor of piece F became dormant or suspended after 1880, but was revived when the ownership of pieces F and E became reunited in 1922, and the owner was thus able to create in favor of piece F an easement of passage across the south end of piece E, has no foundation in reason or authority. In Whiting v. Gaylord, 66 Conn. 337, 349, 34 A. 85, we said: "Implied grants of land, or of easements, or of any interest in land, are allowed here when allowed at all, to a very much more limited degree than in the other States. These decisions are in accordance with what has always been the policy of our recording system, that the title to all interests in land shall appear on the land records, so that they may be easily and accurately traced. . . . We think this plain policy should be adhered to, so that men will know what they have to trust, and can place confidence in the language of all conveyances as they find them recorded." It would strikingly contravene the policy just enunciated, were we to hold that the owner of a dominant estate might possess an easement founded on matters in pais which had arisen in a time long past, and hold the same in abeyance as his interest or caprice might dictate, and at a future time when all of the indicia of its existence had ceased to be evident, successfully maintain the easement as against a person who could have had no warning or notice regarding its inception and continuance.

The view which we have taken regarding the existence of the claimed easement, renders it unnecessary to consider the claims of the plaintiff as to abandonment