Rodal v. Crawford , 272 Mich. 99 ( 1935 )

Plaintiffs filed a bill to have a drive or passageway established and declared to be a public highway by user or necessity.

Plaintiffs are engaged in commercial fishing on the Great Lakes. They own that part of lot 3, block 3, and the west half of lot 2, block 3, lying south of the railroad track, in the village of Frankfort. This property borders upon the Betsie bay, constituting the harbor at Frankfort, upon which, upon the water, is a dock and warehouse used in connection with plaintiffs' business.

Defendant is engaged in the taxi business in Frankfort, and in a small manufacturing business.

Henry Woodward purchased lot 3 in 1870, and the west half of lot 2 in 1877. He was engaged in the freight and transport business prior to the location of the Ann Arbor railroad in Frankfort, and upon the south line of this property (the waterfront on Betsie bay) built a warehouse and public dock prior to 1877, and improved a passageway north connecting with the main street of Frankfort, a distance of 15 or 20 rods, which roadway was used generally for the purpose of hauling freight, merchandise and produce and for the passage and repassage of passengers to and from the boats which tied up at Woodward's dock.

Henry Woodward died in 1909, and upon his death George Woodward became the owner of the lands in question. February 17, 1921, George Woodward and wife conveyed that part of lot 3 and the west half of lot 2, in block 3, south of the Ann Arbor railroad right of way, in the village of Frankfort, to plaintiffs. In 1925, they gave a contract to Gilbert Ness, and on December 14, 1927, conveyed to Ness that part of lot 3, block 3, lying north of the Ann Arbor railroad right of way, in the village of Frankfort. January 26, 1928, Ness, a single man, conveyed to Wash Crawford, defendant, the east 55 feet of lot 3, block 3, lying north of the Ann Arbor railroad right of way.

There is no question but that Ness and Crawford, at the time they acquired the property north of the Ann Arbor railroad right of way, knew all about the property owned by plaintiffs, the dock, storehouse, and other purposes for which it had been used; and the road, public or private, that went to the docks and warehouse.

Defendant Crawford, about December 1, 1932, moved a building 24x30 feet in size on to the lands acquired by him, in such a location as to obstruct the passageway which had been used across plaintiffs' premises, the railroad right of way, and the premises acquired by defendant.

Plaintiffs ask that the passageway from the lands south of the railroad right of way north to the main street of the village of Frankfort be declared to be a public street or highway to the full extent of the used portion thereof, to-wit: two rods; the building or structure described in the bill of complaint, placed in the highway by defendant, be declared to be a public nuisance and abated; a decree be made confirming the right of plaintiffs to use the street or passageway over defendant's premises; an order entered compelling defendant Crawford to remove his building and obstruction from the roadway, and open the same up to the free and uninterrupted use of plaintiffs and the public, restraining defendant from preventing plaintiffs from having access to plaintiffs' premises, or impeding, or interfering with them in any way, and from obstructing or encroaching upon this claimed highway, or interfering with plaintiffs in the use of said road as a highway; and the injunction might upon final hearing be made permanent.

Defendant answered and contended that if Henry Woodward built the warehouse and public dock in the village of Frankfort, he did so for the conduct of his own business; if he used, and permitted the public to use, a passageway over the land now owned by defendant to the main street of the village of Frankfort, he did so for his own convenience and in furtherance of his own business. Defendant says the passageway over Woodward's property, and over the property of Ness, was private. He alleges his property is free and clear of any easement or highway; denies the passageway has been used openly, notoriously, continuously and adversely for a period of 50 years and upwards; denies the same is a public street established by user or otherwise; alleges the passageway has never been used for a public highway, but constituted a private highway for the owner of the dock and was only used for the purpose of the business of the Woodwards; alleges that any use made of the highway by the public was permissive only; denies he wilfully, wrongfully and maliciously blocked such passageway; and denies plaintiffs are entitled to the whole or any part of the relief prayed in their bill of complaint.

There was decree for plaintiffs, and from this decree defendant appeals, claiming his land may not be taken from him for highway purposes for the benefit of plaintiffs on the plea of necessity where their properties do not join, and plaintiffs have two passageways to their property: one over a road to a laid-out street, and the other by water; and, second, the passageway does not constitute a public highway because it has never been taken over, accepted, or maintained by the public.

So long as Henry Woodward owned all the land in question, and so long as his son, George Woodward, owned the same, and used the so-called road or way in connection with their own business carried on at the dock, the public acquired no rights therein. "Permissive use can never ripen into title by prescription." Menter v. First BaptistChurch of Eaton Rapids, 159 Mich. 21. The Woodwards could not establish a right of way over their own land separate and distinct from the title to the land itself. Title to the easement and the land would be merged. This land, they could do with as they saw fit, and the fact that those doing business with Henry Woodward or his son George, in connection with their dock on the navigable water of Betsie bay, were given the use of the road in connection with their business would not prevent such use from being permissive only (19 C. J. pp. 887-889;Weber v. City of Detroit, 159 Mich. 14 [36 L.R.A. (N.S.) 1056]; Pastorino v. City of Detroit, 182 Mich. 5 [Ann. Cas. 1916D 768]; Ann Arbor Fruit Vinegar Co. v. Railroad Co.,136 Mich. 599 [66 L.R.A. 431]), and upon the discontinuance of the business, if it was discontinued, the Woodwards would have had a right to close the road.

"Where a land owner opens up a way on his own land for his own use and convenience, the mere use thereof by another, under circumstances which do not injure the road nor interfere with the owner's use of it, will not in the absence of circumstances indicating a claim of right, be considered as adverse, and will not ripen into a prescriptive right no matter how long continued." 19 C. J. p. 898.

The use of a way established by the owner of premises for his own use by others transacting business with him does not make its use by others than the owner other than permissive.Shreve v. Mathis, 63 N.J. Eq. 170 (52 A. 234); Baxendale v.North Lambeth Liberal and Radical Club, Ltd. (1902), 2 Ch. 427 (71. L. J. Ch. 806, 18 T. L. R. 700, 87 L. T. R. 161, 50 W. R. 650).

If the use of this way in connection with the Woodwards' business constituted upon his or their part an offer to dedicate the way to the public, still, in order to constitute it a public highway, such offer to dedicate must have been accepted by the public either by some resolution upon the part of the village of Frankfort or the township in which the land was situated, or by such unequivocal acts upon the part of the public authorities as to indicate they treated it as a public highway. Chapman v. City of Sault Ste. Marie, 146 Mich. 23;South Branch Ranch Co. v. Emery, 191 Mich. 188; Smith v. StateHighway Commissioner, 227 Mich. 280; Van Wieren v. MacatawaResort Co., 235 Mich. 606; Murphey v. Township of Lee,239 Mich. 551; Snow v. Murphy, 248 Mich. 659.

There is no claim this way was ever accepted by the public authorities by any resolution, or that the public authorities ever did any work upon it. Under the well settled rule in this State, there was no acceptance thereof.

The important question is whether there was an easement or private right of way over the premises. So long as the Woodwards owned the land in question, they had a right to sell the whole or any part of it.

Easements are either continuous or discontinuous.Morgan v. Meuth, 60 Mich. 238; Zemon v. Netzorg, 247 Mich. 563.

A right of way is a discontinuous easement and does not pass on the severance of the two tenements as appurtenant to the property conveyed. The quality or characteristic of continuousness does not belong to a right of way.Hoffman v. Shoemaker, 69 W. Va. 233 (71 S.E. 198, 34 L.R.A. [N. S.] 632);Morgan v. Meuth, supra; Zemon v. Netzorg, supra.

An easement not of strict necessity will not pass by an implied grant unless it is apparent and continuous, and no implication of a grant of a right of way can arise from proof the land granted cannot be conveniently occupied without it. Its foundation rests upon necessity and not upon convenience.Smith v. Griffin, 14 Col. 429 (23 P. 905); Carey v. Rae,58 Cal. 159; Kripp v. Curtis, 71 Cal. 62 (11 P. 879); M'Donald v. Lindall, 3 Rawle (Pa.), 492; Cooper v. Maupin, 6 Mo. 624 (35 Am. Dec. 456); Gayetty v. Bethune, 14 Mass. 49 (7 Am. Dec. 188).

In Carey v. Rae, supra, it is said:

"Those circumstances show that he has a way, which needs repair, and that until repaired it is impassable. But the impassability of the road gives to a party no right to an easement."

Plaintiff Otto Rodal testified:

"Q. You say there is a road passing over to Third street, isn't there, that you are using now?

"Q. You are using this passageway over to Third street, aren't you?

"A. Yes, sir.

"Q. That passageway has been there for years, hasn't it, to Third street?

"A. Yes, I think it has.

"Q. That has been to Third street about the same length of time as this passageway up to Main street, hasn't it?

"A. I don't know.

"Q. It has been there as long as you can remember, hasn't it?

"A. I think it has.

"Q. And the public has used that?

"A. It has not been good enough to use. It is not very good now, either.

"Q. But the public has used it for all these years getting over to Third street?

"A. Yes, I guess they have used it."

Gilbert E. Ness, the prior owner of the property, testified:

"Q. That Anderson property is private property?

"A. I wouldn't consider it so.

"Q. I am not asking you what you consider?

"A. I would say no.

"Q. Is it a public highway?

"A. It has been used as long as I can remember, 20 years or more.

"Q. Do you think the Anderson road is a public highway?

"A. I would think so.

"Q. This road we are speaking of has been used for a longer time than the Anderson road?

"A. I couldn't say as to that. I cannot remember back further than 20 years on it.

"Q. Was the Anderson road there 20 years ago?

"A. As far as I can remember, it was.

"Q. Maybe you cannot remember anything about it. Tell me when you ever traveled the Anderson road heretofore?

"A. I have driven over it a hundred times with my car."

Defendant Crawford testified:

"Q. Is there another passageway to Third street over which Mr. Rodal can go to his property?

"A. Yes, sir."

It appears in this case plaintiffs have a right over the so-called Anderson road to Third street, and strict necessity does not give them a right of way or easement over the lands of defendant. The fact the road to Third street is not in good repair does not give plaintiffs a way of necessity over defendant's land.

Plaintiffs' land fronts on Betsie bay, navigable Water constituting the harbor at Frankfort, a public highway, and defendant contends plaintiffs may have no way of necessity over his land though it may be more convenient for plaintiffs to pass over his land than using the waters of the bay to reach their premises.

When the land conveyed is surrounded on all sides but one by water and there is no access to it by land except over the grantor's land, there is not such a necessity as to raise an implied grant of the right of way over this land. Washburn's Easements and Servitudes (4th Ed.), p. 259.

The reasonable access to a highway over a navigable body of water prevents the maintenance of a way by necessity over the lands of another. 19 C. J. p. 923.

"The plaintiff has a navigable water course from his door to the public road or highway, by which the distance is not greater than by land; and although there may be some inconvenience in being obliged always to go by water when he visits his plantation, yet it is not greater than necessarily attends every insular situation, and perhaps not so great to him as it would be to his neighbour to keep up a lane through his plantation for his accommodation; and even if it were greater, it was one of which he was aware when he purchased (or those under whom he claimed), and may, therefore, be considered of his own creation." Lawton v. Rivers, 2 McCord (S.C.), 445 (13 Am. Dec. 741).

"The whole case then resolves itself into the question whether the plaintiff is entitled to a right of way from necessity? The necessity by which a person derives a right of way, is when one person sells to another lands inclosed on all sides by other lands * * * The right in such case must arise from necessity. * * * Suppose one person sell to another the extreme point of a neck or tongue of land surrounded by an open sea or navigable streams, except on one side, would it be understood that the seller should allow him a right of way through the whole neck of land, because it might sometimes be more convenient for him to go to his farm by land than by water? I should apprehend not. Much less would he have a right to demand such a privilege from the owners of the adjacent land who were not parties to the contract * * * The inconvenience of going always by water to his farm would not amount to such a necessity as would entitle him to such a privilege." Turnbull v. Rivers, 3 McCord (S.C.), 131 (15 Am. Dec. 622).

"It is maintained the defendant purchased the land of Wyckoff with no other exit than this crossing; * * * and his grantors had a right of way by necessity to reach the highway. * * * Owasco Lake is a navigable body of water, permitting an unimpeded way out over it, so we are not clear that an easement by necessity exists in favor of defendant." Burlew v. Hunter,41 App. Div. 148 (58 N.Y. Supp. 453).

"It seems to me there is another insuperable objection to the defendant's claim. As stated, Irondequoit bay is a navigable body of water. When the highways were extended to the bay and were readily accessible by boats and steamers from the island, the necessity for a way out over the lands of the plaintiff ceased. The reasonable access to a highway over a navigable body of water prevents the maintenance of a passage by necessity over the lands of another." Bauman v. Wagner,146 App. Div. 191 (130 N.Y. Supp. 1016).

"In Kingsley v. Gouldsborough Land Improvement Co.,86 Maine, 279 (29 A. 1074, 25 L.R.A. 502), it appeared that the land to which the way by necessity was claimed was surrounded on three sides by navigable water, that the owners had built a wharf and in the summer were accustomed regularly to run a steamboat two or three times a day between the premises and other places. It was held that there was no way by necessity over the adjacent land. InHildreth v. Googins, 91 Maine, 227 (39 A. 550), the land in question bordered on the ocean, and it was ruled that in the absence of other evidence there was a presumption that the public highway over the water was available, and it was assumed that it would be competent to show by evidence that it was unavailable. In Lawton v. Rivers, 2 McCord (S.C.), 445 (13 Am. Dec. 741), and in Turnbull v. Rivers, 3 McCord (S.C.), 131 (15 Am. Dec. 622), the estate to which the way by necessity was claimed was an island, but at low tide there was a smooth hard strip of beach which had been used as a way, and which connected the island with the mainland. The access by water was easily available and reasonably convenient. It was held that there was no way by necessity over the land." Feoffees of theGrammar School in Ipswich v. Proprietors of Jeffrey's NeckPasture, 174 Mass. 572 (55 N.E. 462).

"In the present case the defendants' land has navigable waters upon three sides of it. Over these waters there is a public right of travel. The defendants have the free use of these waters in going to and from their land. They have erected wharves and own a steamboat which during certain portions of the year runs several times each day between there and Bar Harbor, and as occasion requires to Winter Harbor on the east. To the latter place it is only three-quarters of a mile, by the way of the road or by water. It might oftentimes be more convenient to pass over a highway, or across the plaintiff's premises, than be subjected to the inconvenience of using the waters of the sea. But this inconvenience is not such as the law requires to constitute a legal necessity for the way claimed." Kingsley v. GouldsboroughLand Improvement Co., 86 Maine, 279 (29 A. 1074, 25 L.R.A. 502).

" 'Implied grants of this character are looked upon with jealousy, construed with strictness, and are not favored, except in cases of strict necessity, and not from mere convenience.' Kingsley v. Gouldsborough Land Improvement Co.,86 Maine, 280 (29 A. 1074, 25 L.R.A. 502). In that case it was held by this court, that as free access to the land over public navigable waters existed, a way by necessity over the grantor's land could not be implied. The same rule applies here. Defendant's land borders on the ocean, a public highway, over which access to her land from the street can be had. It may not be as convenient as a passage by land, but necessity and not convenience is the test." Hildreth v. Googins,91 Maine, 227 (39 A. 550).

"Ordinarily no right of way by necessity exists where the land to which such right of way is claimed borders on the sea; but if the way by water is unavailable to meet the requirements of the natural uses of the granted lands a way of necessity may be implied over adjoining lands of the grantor." 9 R. C. L. p. 771, § 31.

See, also, Jones on Easements, § 320.

Plaintiffs' bill of complaint alleges that Henry Woodward was engaged in the freight and transport business before the railroad was built to Frankfort, and upon the south line of plaintiffs' property, the waterfront on Betsie bay, which bay connects with Lake Michigan, built a warehouse and public dock; and small packets and hucksters arrived from or departed to ports on the Great Lakes, and tied up to, loaded and unloaded at such dock and warehouse.

Plaintiffs are engaged in commercial fishing on the Great Lakes. The waters of Betsie bay in front of plaintiffs' premises are navigable. The business of the Woodwards and of plaintiffs is based upon the use of such waters. Plaintiffs have access by the use of such navigable waters to the public streets of the village of Frankfort. No way of necessity over defendant's land exists.

Decree of the trial court should be reversed, with costs, and bill dismissed.