Dillman v. Hoffman

38 Wis. 559

Opinion

Ryan, C. J.

There is in numerous cases much discussion of the main question argued on this appeal, and not a little diversity of decision. The question is very interesting, and was thoroughly investigated and intelligently presented by counsel on both sides.

When one part of an estate is dependent of necessity for enjoyment on some use, in the nature of an easement, in another part, and the owner conveys either part, without express provision on the subject, all the authorities agree that the part so dependent, thence called the dominant estate, carries or reserves with it an easement of such necessary use in the other part, thence called the servient estate. The rule goes upon the maxim, guando aliguis aliguid concedii, concederé videtur et id sine guo res concessa uti non potest, held to be bad Latin but good law. Pinningion v. Qalland, 9 Exch., 1.

Footnotes

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* But the rule has long been applied to implied reservations as well as to implied grants. Clark v. Cogge, Croke Jac., 170.

When the part conveyed is the dominant estate, later authorities generally go beyond easements of necessity; many holding that grantees take implied easements of whatever uses had been apparently and continuously made of the servient estate, for the convenient and beneficial enjoyment of the dominant estate. Some cases cited by the appellant show, however, that this rule is not always recognized in its broad sense. Gayetty v. Bethune, 14 Mass., 49; Grant v. Chase, 17 id., 443; Manning v. Smith, 6 Conn., 289; Barlow v. Rhodes, 1 Crompt. & M., 439; Worthington v. Gimson, 2 Ell. & E., 618; Langley v. Hammond, L. R., 3 Exch., 161; Thomson v. Waterlow, L. R., 6 Eq. Cas., 36.

"When the part conveyed is the servient estate, there is great conflict of authority ever since Pyer v. Carter, 1 H. & N., 916; some cases holding implied reservations as extensive as the implied grants upon conveyance of the dominant estate; others adhering to the earlier rule, that grantors can claim nothing in derogation of their grants, beyond easements of necessity. Tenant v. Goldwin, 2 Ld. Raymond, 1089.

Since Pyer v. Carter, cases have multiplied on the point, pro and con. The question is new here; for it is not passed upon in Mabie v. Matteson, 17 Wis., 1, or any other case within our recollection in this court. And when we find occasion to pass upon it, there is ample authority in the books to sustain us in adopting a rule according to our own impression of reason and justice.

We may say, however, in passing, that it is always safest to let written contracts speak for themselves. This rule is often relaxed with doubtful expediency. Parties ought to make their own contracts complete. Alienations of land are, or ought to be, grave and deliberate transactions. Every conveyance should contain “ the certainty of the thing granted ” to the full extent of the grant. What may be expressed enlarging or restricting the grant in particular cases, should not be left to implication. It is often difficult,-as the cases show, to determine what shall be implied in conveyances, by way of grant or reservation of easement: what parties,, who might have spoken, shall be held to intend by their silence. And, because “a deed shall be construed most strongly against the grantor,” this view applies with great force against implied reservations in the servient estate conveyed by the owner of the dominant estate. Indeed it is remarkable that the doctrine of implied grant of easement in the land of the grantor once rested very much on the principle that the grantor should not be heard to derogate from his grant (Howton v. Frearson, 8 T. R., 50); and yet the same doctrine has been extended to implied reservations to the grantor in what he conveys, in direct derogation from his grant. On principle, therefore, we should be disinclined to enlarge or limit estates granted, by implication of law, further than a general current of decision might oblige us.

Such seems to be the policy of our legislation. The common law implied covenants from some words used in conveyances. That is now forbidden by statute (R S., cb. 86, secs. 5, 6) ;t for the reason, we take it, that it is better to leave parties to express their covenants: a reason equally applicable to implied grants and reservations.

In new states like this, the uses of land and of structures on land are more variable with the growth of population and business, than in England or the older states; and it might tend to impede sale and improvement of real property, if old uses of soil or buildings should be too easily placed beyond the power of owners by easements implied by conveyances in their chains of title.

The whole doctrine was originally restricted to ways of necessity, because “It is pro bono publico that the land shall not be unoccupied.” Dutton v. Taylor, 2 Lutwyche, 1487. And it may well be doubted whether it might not have been wiser to have always restricted both implied grants and implied reservations to easements of necessity; not perhaps of absolute, physical necessity, but of reasonable necessity, as distinguished from mere convenience. Carbrey v. Willis, 7 Allen, 364; Pettingill v. Porter, 8 id., 1.

But we will not pursue the subject further. We did not in tend to do more than mention tbe state of tbe authorities, and have been led to say so much by the interesting character of the question, professional and practical. In any view of the present case, the unanimous agreement of the authorities. in favor of the reservation to the dominant estate of an easement of necessity upon conveyance of the servient estate, is sufficient for the respondent, Adam Dillman.

For, if the doctrine be applicable to such a case, there seems to be no doubt that the common stairs, passages and halls of the building erected by Mr. Kneeland, and now owned in sev-eralty by these parties under his conveyances, constitute a way of necessity to the respondent’s part of the building on.the dominant estate, in part over the appellant’s part on the servi-ent estate.

In such a property, the present beneficial use is in the building. While it stands, the immediate use of the land is chiefly as a place for the building. When the building is of a permanent character, as here, the estate is commonly bought and sold chiefly in view of the uses of the building. When this building was put up, the stairs, passages and halls were made, not a convenience merely, but a necessity to the use of the whole building above the ground story. There was no other access to either part, the appellant’s or. the respondent’s. When Kneeland conveyed, he made title in severalty to the building as it stood. It is true that either party might have so altered his part of the building as to have made internal access to the upper stories; but not without such change in the structure and use of his part as would make it virtually a different building.

But whether upon such a conveyance of part of a structure dependent for access above on common stairs, passages and halls, the doctrine of easements in ways of necessity applies, as held in Thompson v. Miner, 30 Iowa, 386; Morrison v. King, 62 Ill., 30, and perhaps other cases; or whether in such a case the conveyance of part should not be held to determine the common use of stairs, passages and halls, — we need not, in our view of this case, determine.

For, granting the easement, each stair, passage and hall was not a separate easement, but together constituted one entire, mutual easement: parts of one common way. And the common stairs, passages and halls being in part upon the estate of each party, it appears very certain, upon principle and authority, that neither party could insist upon such an easement in the estate of the other, and at the same time obstruct the easement in invitum on his own estate. Either party, relying for himself on a mutual easement, would be bound to concede it to the other; and an adverse, permanent exclusion of one by the other upon the estate of thevlatter, would, at the election of the former, operate as an extinguishment of the mutual easement by the latter. Washburn on Eas., ch. 5, sec. 5, and the cases there cited, particularly Corning v. Gould, 16 Wend., 531. That case proceeds upon obstruction by one party of a mutual way, and appears to be directly applicable to the present case. See also Partridge v. Gilbert, 15 N. Y., 601; Dyer v. Sanford, 9 Met., 395.

The respondent’s grantor, while seized, several years before this suit was brought, built a permanent partition, ever since maintained, inclosing within his own premises a great part of the common halls and passages in the upper stories upon his own estate, and removed a stairway between the second and third stories, part of the common way, from his own premises to those of the appellant. This worked a substantial change in the economy of the common way, and went far to relieve the respondent’s premises from the burthen of the mutual easement which he claims. It is immaterial that this change left a common way. It did not leave the same common way, nor one apparently as advantageous to the appellant. And there can be no serious question that the change was an obstruction of the common way established by Kneeland, within the rule stated, if it was made in invitum. The respondent, however, claims that it was made by consent of tbe owners of both estates. We think that tbe evidence fails to establish such consent.

It is true that one witness testifies to tbe consent of Mr. Bruno, the appellant’s grantor of part of his premises. But Bruno’s consent, without the appellant’s, would have been insufficient. And it is pretty evident that the witness made some mistake, either as to the person or to the time. He does not deny that the appellant did object. And the appellant himself, who was then seized of part and had apparently purchased the rest of his present premises, positively testifies to his objection to the change, made at the time and apparently not since relinquished. The evidence leaves us no room to doubt the fact.

What might then have been the rights or remedies of the appellant to maintain the common way, we need not now inquire. He had a right to insist on the extinguishment of the respondent, as he did and does. The mutual easement, if there were one, is now clearly extinguished by the permanent obstruction of the one party and the ratification of it by the other. The appellant’s partial forbearance to enforce his right could not affect the right itself, until the new way should ripen into a way by prescription. And the respondent cannot have equitable interposition to enforce against the appellant a .mutual way in both of their estates, from which in a great measure he excludes the appellant on the respondent’s own estate.

Other questions were discussed at the bar, which, in this view of the case, it is unnecessary to decide.

By the Court — The judgment of the court below is reversed, and the cause remanded with instructions to dismiss the complaint.

The maxim is generally given, in perhaps no hetter Latin, as found in Liford's Case, 11 Coke’s R., 46 b.