Miles v. Bodenheim , 193 S.W. 693 ( 1917 )

Appellant insists that the easement claimed by appellees Melton and Bodenheim could have been created only by an express grant thereof by a deed duly executed by Rogers and his wife, or by a grant thereof the law would imply from the necessity of the case, or from long and continuous use of the alley as a way. Appellant further insists that it did not appear from either said appellees' pleadings or the evidence that an easement as claimed was created in either of those ways, and that the trial court therefore erred when he overruled appellant's demurrer to said appellees' petition, and when he refused to peremptorily instruct the jury to find in his favor against said appellees.

It may be conceded, at once, that an easement as claimed in the strip of land in question did not appear to have been created in either of the ways suggested. But we think it appeared from the pleadings and also from findings of the jury supported by evidence that an easement nevertheless existed as claimed.

Rogers owned the entire tract of land at the time he conveyed a part thereof to Bodenheim; and he owned all the tract except that part when he conveyed another part thereof to Thompson. Before he sold to Bodenheim, Rogers by a fence had segregated the strip in question from the part afterwards conveyed to appellant; he had constructed improvements he placed on the part he resided upon with reference to the alley and its use in connection therewith, and had not provided any other way to reach same (his barn, for instance) from either College or Center streets; he afterwards subjected the alley to use only as a way to and from the parts of the tract abutting upon it to said streets, and was so using it at the time he sold to Bodenheim; he and Bodenheim (who had constructed improvements on the part conveyed to him with reference to the alley, and had provided no other way to reach same) were so using the alley at the time he (Rogers) sold to Thompson; and Bodenheim and Thompson, or his vendees, were so using it at the time Mrs. Rogers sold to appellant.

The facts recited make applicable, we think, a rule which has been stated as follows:

"The general rule is that where during the unity of title an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use and is reasonably necessary for the fair enjoyment of the other, then upon a severance of such ownership there arises by implication of law a grant of the right to continue such use. The application of the rule must depend upon the nature, arrangement and use of the estate, the relation of the parts to each other, and the existing degree of necessity for giving such construction to the grant as will give effect to what may be supposed to have been, considering the manner of the use, the reasonable intendment of the parties; the underlying principle in such cases being that included in the grant are all such privileges and appurtenances as are obviously incident and necessary to the fair enjoyment of the thing granted, substantially in the condition in which it is enjoyed by the grantor, unless the contrary is provided. The rule is also said to be based on the maxim that no man can derogate from his own grant — this being in effect a formulation of a principle of estoppel. A presumption frequently invoked in that the parties contracted with a view to the condition of the property as it actually was at the time of the transaction, and after sale neither party without the consent of the other has a right to change, to the detriment of the other, that condition which openly and visibly existed. Of course this presumption may be rebutted by parol evidence of an agreement or understanding at or prior to the sale that the easement was not to pass, on the theory that a presumption raised by parol evidence may also be rebutted by that character of evidence. The rule itself, since it presupposes the existence of quasi easements, must be distinguished from the principle which underlies the creation of ways of necessity." 9 R.C.L. p. 755 et seq.; 14 Cyc. 1166.

And see Sellers v. Railway Co., 81 Tex. 458, 17 S.W. 32,13 L.R.A. 657; Carmon v. Dick, 170 N.C. 305, 87 S.E. 224; Mattes v. Frankel,157 N.Y. 603, 52 N.E. 585, 68 Am. St. Rep. 804; Teachout v. Duffus,141 Iowa 466, 119 N.W. 983; Insurance Co. v. Patterson, 103 Ind. 582,2 N.E. 188, 53 Am.Rep. 550; Powers v. Heffernan, 233 Ill. 597, 84 N.E. 661,16 L.R.A. (N.S.) 523, 122 Am. St. Rep. 199; Rollo v. Nelson,34 Utah, 116, 96 P. 263, 26 L.R.A. (N.S.) 315; German Savings Loan Society v. Gordon, 54 Or. 147, 102 P. 736, 26 L.R.A. (N.S.) 331; Phillips v. Phillips, 48 Pa. 178, 86 Am.Dec. 577; Zell v. Universalist Society,119 Pa. 390, 13 A. 447, 4 Am. St. Rep. 654; Martin v. Murphy, 221 Ill. 632,77 N.E. 1126.

In the Zell Case the easement claimed was in an alleyway, as it is here. The existence of the easement could not in that case, as It cannot in this one, be referred to an express grant, nor to an implied grant based on necessity. The court applied the rule stated above and affirmed a judgment establishing the easement claimed.

So in the German Saving Loan Society Case, the easement claimed was a way over lots belonging to Gordon. The same rule was applied, and a judgment in favor of the loan society establishing the existence of the easement was affirmed by the Supreme Court of Oregon. In disposing of the appeal the court discusses the rule and its limitations at length, and with reference to a contention made there, as it is here, that the rule did not apply to easements such as the one claimed there and here, quoted approvingly from Baker v. Rice, 56 Ohio St. 463, 47 N.E. 653, as follows:

"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 * * * 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."

In the Martin Case also the easement claimed by Murphy was a way over a lot adjacent to his own belonging to Martin. The Supreme Court of Illinois applied the rule in affirming a judgment in Murphy's favor, saying:

"The rule of the common law upon the subject is, that where the owner of two heritages, or of one heritage consisting of several parts, has arranged and adapted these so that one derives a benefit or advantage from the other of a continuous and obvious character, and he sells one of them without making mention of those incidental advantages or burdens of one in respect to the other, there is in the silence of the parties an implied understanding and agreement that these advantages and burdens, respectively, shall continue as before the separation of the title."

When uncontroverted facts recited in the statement above and findings warranted by testimony made by the jury are considered with reference to the rule of law applicable, it is plain, we think, that the judgment in favor of the existence of the easement claimed is right, and that it should be affirmed unless other contentions than those specified made by appellant, and now to be referred to, ought to be sustained.

One of those contentions is that an easement like the one claimed was an estate in land which could be passed from Rogers and wife to Bodenheim and Thompson and his vendees only by an instrument in writing as provided by article 1103, Vernon's Statutes. Another is that it was an interest in land constituting the homestead of Rogers and his wife which could be passed to said Bodenheim and Thompson only by a deed executed and acknowledged by Mrs. Rogers as provided by article 1115, Vernon's Statutes. It is, we think, a sufficient answer to those contentions to say that the conveyances to Bodenheim and Thompson were both in writing and appeared to have been signed and acknowledged by both Rogers and his wife as contemplated by the articles of the statute referred to. The legal effect of the deeds, construed in connection with testimony showing the situation of the premises they respectively conveyed, with respect to the alley and its use, was to grant the easement claimed by Bodenheim and Melton in the alley. "No principle of law is better settled," said the court in Mattes v. Frankel, 157 N.Y. 603, 52 N.E. 585, 68 Am. St. Rep. 804, "than that some things pass by a conveyance of lands as incident and appurtenant thereto, though not named therein. This is the case with a right of way or other easement appurtenant to land."

"We have seen no case that intimates," said the court in City of Indianapolis v. Kingsbury, 101 Ind. 200, 51 Am.Rep. 749, "that a married woman who conveys property does not also convey all appurtenances."

Another contention made by appellant is that the finding that he knew at the time he bought that the alley existed, and of the use being made of it by Bodenheim, Melton and others, was without the support of evidence. It abundantly appeared from the testimony that, at the time Miles bought, the alley was fenced on both its sides, and was open at its mouth on College street, and was being used by Bodenheim and Melton as a way to the parts of their premises abutting on it. Appellant himself testified that he had "had his mind on" the part he bought for a long time before he bought it, and had been "noticing it for quite a while." "I suppose I saw the alley," he said; "I knew it was being used by wagons and buggies, or whatever might want to go in there." But, even if it did not appear from his own testimony, as it did, or from other testimony, that appellant knew, as found by the jury, that the alley existed and about the use made of it, we think the law would charge him with such knowledge. Moll v. Hagerbaumer, 98 Neb. 555, 153 N.W. 560; German Saving Loan Society v. Gordon, 54 Or. 147, 102 P. 736,26 L.R.A. (N.S.) 331. In the Moll Case the court said:

"If plaintiff had an easement, it was open and visible to defendants when they purchased the servient estate. They were therefore chargeable with notice of plaintiff's roadway right, if any."

Another contention, and the only other one we will refer to, is that the court erred when he overruled appellant's objection to the testimony of the witness Thompson set out in the statement above. As we view it the statute invoked had no application to Bodenheim and Melton's suit. It was against appellant Miles, and not against Mrs. Morrow. She was neither a necessary nor a proper party to their suit against Miles. They sought no relief as against her, and no judgment should have been rendered in their favor against her in either her individual capacity or her capacity as administratrix of the community estate between her and her deceased husband, or in her capacity as his heir. She was a party to the suit at the instance alone of appellant Miles. He alone sought relief as against her. We do not think Miles by making her a party, as the warrantor of the title he claimed to the land in which Bodenheim and Melton asserted an easement, could render inadmissible testimony admissible against him had he not made her a party. If it should be conceded that the testimony objected to tended to show a breach of the covenant in the deed of Mrs. Morrow to appellant, and therefore was "against" her within the meaning of the statute, it seems to us that she alone had a right to urge the objection interposed to its admission, and to complain because the objection was overruled. She has not appealed, but is in the attitude of acquiescing in the judgment.

There is no error in the judgment of which appellant has a right to complain, and it is affirmed.