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It was properly conceded by the counsel for the plaintiff, in the present case, that the proceedings for laying out the road were, in view of the law as it existed at that time, unconstitutional and void. (Taylor v. Porter, 4 Hill, 140.) These proceedings are only important so far as they bear on the acts of the grantors of the plaintiff, and shed light on the nature of the consent of Arnsberger to the act of laying out the road over his land. It was not disputed by the defendant that, while the acts of the commissioner in laying out the road were nugatory, the plaintiff might have a right of way derived from the consent of Arnsberger. Such must be the law on general principles of equity, even though the consent be given by parol, if there be sufficient in the case to take it out of the statute of frauds. The question at issue between the parties is thus narrowed down to the nature of Arnsberger's consent. On this point there was some conflict of evidence at the trial. The referee has found as a fact, that though the commissioner in his order directed the road to be laid out wholly over the land of Arnsberger, yet, as a matter of fact, it was laid out in part over his land, and in part over that of Miller, and that Arnsberger only consented to such a road as that, and not to one a rod wide, laid out wholly over his own land. This, I think, is the reasonable construction of his findings, considered as a whole, though it must be admitted that his phraseology is not absolutely clear. There being some evidence to sustain this finding, it cannot be disturbed in this court. Rogers, the grantee of Miller, having revoked any license which his grantor may have given to Leddick to pass over his portion of the land, the defendant, as successor of Arnsberger, claims that Arnsberger's consent is thus practically nullified. His argument is, briefly stated, as follows: Arnsberger consented to a road, one rod wide, to be laid out, one-half over his own land, and one-half over that of Miller; the road, as to Miller's half, is inoperative, therefore Arnsberger gave no consent to any road whatever
— not even to one of half a rod in width. The plaintiffs, on the other hand, insist that Arnsberger's consent is still operative and effectual as to a road, one-half rod in width, over his own land. On this point, I think that the weight of argument is with the plaintiffs. True, by the practical acts of the parties, the road did not take effect exactly as was intended, still the variation was immaterial as between the plaintiffs' grantor and Arnsberger. It in no respect increased the burden on Arnsberger's land. If the road had been laid out on the land of both parties, the plaintiffs might lawfully have traveled wholly over the lands of Arnsberger. They could do precisely what he might do with a road half a rod in width. It cannot be supposed, in law, that his consent would have been affected by a change in circumstances wholly immaterial.
Moreover, Leddick advanced a consideration for the road which Arnsberger retained. The latter must be supposed thereby to have waived any variation between his real and his apparent consent.Prima facie, the plaintiffs had an equitable right, on this ground, to specific performance; while he cannot have the whole road, he may insist on such part as the successor of Arnsberger is able to give him. Had Leddick, when the road was laid out, been the owner in fee of Espenour's lot, I should clearly have been of the opinion that, as between him and Arnsberger, he would have acquired a permanent right of way.
I have now reached the question as to the effect of Leddick's acts in relation to Espenour. He may, in the first instance, be considered as tenant at will of Espenour. In that character it may be assumed that he acquired a right of way from Espenour's land to the highway. The conduct of the parties shows that their intention was that the right of way should be permanent. Trees were cut down, sluices were made, and a fence put up between the lane and the residue of Arnsberger's land. These acts are inconsistent with the mere use of the road for a fugitive and temporary purpose. They look to continuance of the road for the use of the owner.
The intention being clear, there appears to be no difficulty in holding that Leddick, as tenant, may be the medium whereby the right of way passed to his landlord, Espenour. He was a sort of bailiff or agent to make the acquisition for his landlord. As soon as Leddick acquired the right, it enured to the landlord's benefit. It is settled law, that all that the tenant thus acquires from third persons appertains to the landlord. The rule is applied even to encroachments made by him upon the lands of others; a fortiori, would it be applicable where the acquisition is made by consent of, or through contract with, the owners of adjoining lands. (1 Wn. on Real Property, 483.) The cases on the subject of encroachment may be stated by way of illustration. They maintain that if a tenant, while in possession, encroaches upon adjacent lands, and encloses portions of them, and thus acquires a prescriptive title, he is presumed by law to have acted with a view to add to the interest of his landlord. Undoubtedly, this presumption may be rebutted, but where there is no countervailing proof, the rule is of uniform application. (Doe v. Jones, 15 M. W., 580; Doe v. Rees,
6 C. P., 610; Andrews v. Hailes, 2 Ellis Black., 349;Doe v. Tidbury, 14 Com. Bench, 304; Lisburne v. Davies,
L.R. [1 C.P.], 260; Kingsmill v. Millard, 11 Exch., 313.) These cases establish the doctrine that a tenant, even from year to year, has a capacity to acquire a permanent interest in adjacent lands belonging to third persons for the use of the leased property, which shall enure to his own benefit while the tenancy continues, and on its expiration shall appertain to his landlord. There appears to be no difference in principle whether the acquisition is made by prescription or by contract. The tenant's intent is the main subject of inquiry. In the case at bar, the intent of both parties, as has been already shown, is plain. From all the acts taken together, it is impossible to suppose that the intent was any thing else than to give Espenour a continuing right of way, Leddick having, at the time the road was laid out, the mere possession, to be terminated at Espenour's will.
The case may now be regarded from another point of view. The plaintiff offered to show, at the trial, that there was a parol understanding between Leddick and Espenour, prior to the purchase by the latter of the property of the former, and being a part of the transaction, that Leddick should procure a right of way, and that a portion of the purchase-price of the land was to be retained by Espenour to abide the result.
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It was properly conceded by the counsel for the plaintiff, in the present case, that the proceedings for laying out the road were, in view of the law as it existed at that time, unconstitutional and void. (Taylor v. Porter, 4 Hill, 140.) These proceedings are only important so far as they bear on the acts of the grantors of the plaintiff, and shed light on the nature of the consent of Arnsberger to the act of laying out the road over his land. It was not disputed by the defendant that, while the acts of the commissioner in laying out the road were nugatory, the plaintiff might have a right of way derived from the consent of Arnsberger. Such must be the law on general principles of equity, even though the consent be given by parol, if there be sufficient in the case to take it out of the statute of frauds. The question at issue between the parties is thus narrowed down to the nature of Arnsberger's consent. On this point there was some conflict of evidence at the trial. The referee has found as a fact, that though the commissioner in his order directed the road to be laid out wholly over the land of Arnsberger, yet, as a matter of fact, it was laid out in part over his land, and in part over that of Miller, and that Arnsberger only consented to such a road as that, and not to one a rod wide, laid out wholly over his own land. This, I think, is the reasonable construction of his findings, considered as a whole, though it must be admitted that his phraseology is not absolutely clear. There being some evidence to sustain this finding, it cannot be disturbed in this court. Rogers, the grantee of Miller, having revoked any license which his grantor may have given to Leddick to pass over his portion of the land, the defendant, as successor of Arnsberger, claims that Arnsberger's consent is thus practically nullified. His argument is, briefly stated, as follows: Arnsberger consented to a road, one rod wide, to be laid out, one-half over his own land, and one-half over that of Miller; the road, as to Miller's half, is inoperative, therefore Arnsberger gave no consent to any road whatever
— not even to one of half a rod in width. The plaintiffs, on the other hand, insist that Arnsberger's consent is still operative and effectual as to a road, one-half rod in width, over his own land. On this point, I think that the weight of argument is with the plaintiffs. True, by the practical acts of the parties, the road did not take effect exactly as was intended, still the variation was immaterial as between the plaintiffs' grantor and Arnsberger. It in no respect increased the burden on Arnsberger's land. If the road had been laid out on the land of both parties, the plaintiffs might lawfully have traveled wholly over the lands of Arnsberger. They could do precisely what he might do with a road half a rod in width. It cannot be supposed, in law, that his consent would have been affected by a change in circumstances wholly immaterial.
Moreover, Leddick advanced a consideration for the road which Arnsberger retained. The latter must be supposed thereby to have waived any variation between his real and his apparent consent.Prima facie, the plaintiffs had an equitable right, on this ground, to specific performance; while he cannot have the whole road, he may insist on such part as the successor of Arnsberger is able to give him. Had Leddick, when the road was laid out, been the owner in fee of Espenour's lot, I should clearly have been of the opinion that, as between him and Arnsberger, he would have acquired a permanent right of way.
I have now reached the question as to the effect of Leddick's acts in relation to Espenour. He may, in the first instance, be considered as tenant at will of Espenour. In that character it may be assumed that he acquired a right of way from Espenour's land to the highway. The conduct of the parties shows that their intention was that the right of way should be permanent. Trees were cut down, sluices were made, and a fence put up between the lane and the residue of Arnsberger's land. These acts are inconsistent with the mere use of the road for a fugitive and temporary purpose. They look to continuance of the road for the use of the owner.
The intention being clear, there appears to be no difficulty in holding that Leddick, as tenant, may be the medium whereby the right of way passed to his landlord, Espenour. He was a sort of bailiff or agent to make the acquisition for his landlord. As soon as Leddick acquired the right, it enured to the landlord's benefit. It is settled law, that all that the tenant thus acquires from third persons appertains to the landlord. The rule is applied even to encroachments made by him upon the lands of others; a fortiori, would it be applicable where the acquisition is made by consent of, or through contract with, the owners of adjoining lands. (1 Wn. on Real Property, 483.) The cases on the subject of encroachment may be stated by way of illustration. They maintain that if a tenant, while in possession, encroaches upon adjacent lands, and encloses portions of them, and thus acquires a prescriptive title, he is presumed by law to have acted with a view to add to the interest of his landlord. Undoubtedly, this presumption may be rebutted, but where there is no countervailing proof, the rule is of uniform application. (Doe v. Jones, 15 M. W., 580; Doe v. Rees,
6 C. P., 610; Andrews v. Hailes, 2 Ellis Black., 349;Doe v. Tidbury, 14 Com. Bench, 304; Lisburne v. Davies,
L.R. [1 C.P.], 260; Kingsmill v. Millard, 11 Exch., 313.) These cases establish the doctrine that a tenant, even from year to year, has a capacity to acquire a permanent interest in adjacent lands belonging to third persons for the use of the leased property, which shall enure to his own benefit while the tenancy continues, and on its expiration shall appertain to his landlord. There appears to be no difference in principle whether the acquisition is made by prescription or by contract. The tenant's intent is the main subject of inquiry. In the case at bar, the intent of both parties, as has been already shown, is plain. From all the acts taken together, it is impossible to suppose that the intent was any thing else than to give Espenour a continuing right of way, Leddick having, at the time the road was laid out, the mere possession, to be terminated at Espenour's will.
The case may now be regarded from another point of view. The plaintiff offered to show, at the trial, that there was a parol understanding between Leddick and Espenour, prior to the purchase by the latter of the property of the former, and being a part of the transaction, that Leddick should procure a right of way, and that a portion of the purchase-price of the land was to be retained by Espenour to abide the result. Had such testimony been admitted, would it have been material ? In the outset it must be conceded that if there had been such a parol understanding, it could not have been received in evidence as between the parties to the deed. The rule that parol evidence is inadmissible to vary the terms of a valid written instrument would have been applicable. A stranger to the contract, however, cannot invoke this rule. (1 Greenleaf on Evidence, § 279.) It is there said, "the rule is applied only in suits between the parties to the instrument, as they alone are to blame if the writing contains what was not intended, or omits that which it should have contained. It cannot affect third persons." (1 Pothier on Obligations, by Evans, p. 4, chap. 2, art. 3 n; 2 Stark. Ev., 575; Edgerley v. Emerson, 3 Foster, 555; Langdon v.Langdon, 4 Gray, 186.) In the case at bar, the defendant cannot avail himself of this rule. It is immaterial to him whether the agreement to procure a right of way was introduced into the plaintiff's deed or left to oral understanding.
The only serious inquiry is, whether the right of way, obtained under such a parol agreement, would pass to Espenour as appurtenant to his land. It certainly would not in the view of a court of law, as the rule that it must be in writing and under seal, as an incorporeal hereditament, was not complied with. I see no objection to the view that it would be transferable in equity. Suppose that there had been a clause in Espenour's deed, that Leddick would procure for him a right of way, and he had subsequently fulfilled the agreement in an imperfect manner, by obtaining a writing not under seal — would not that, in equity, have belonged to Espenour? If so, the result must be the same in the case at
bar, as the parol agreement for a right of way, executed and based upon a consideration, is of equal validity with a written agreement not under seal. So long as Arnsberger intended to grant a permanent right of way, and Leddick had agreed to procure one for Espenour, justice can only be done by holding that the parties substantially accomplished what they intended. This view is strengthened by the fact that the statute concerning private roads, provides that they shall be laid out for the use of the applicant, his heirs and assigns. It thus recognizes the assignability of the road, and it may be assumed that the consent of Arnsberger was, in accordance with the idea underlying the statute, to a road which was to be transferred or assigned with the land to which it was naturally an incident.
If this view is correct, the right to the way passed through the intermediate grants to the plaintiff. (Washburn on Easements, 25, and cases cited.) The court below, accordingly, erred in excluding the offer to show the parol agreement between Leddick and Espenour.
The judgment should be reversed.