Meek v. Breckenridge

29 Ohio St. 642

• Court: Ohio Supreme Court
• Decided: December 15, 1876
• Status: Published

Opinion

Boynton, J.

The action below was brought to foreclose a mortgage given to secure the payment of purchase-money of real estate. The defense interposed was a counterclaim for damages arising out of an alleged breach of the covenants of title contained in the deed of conveyance from the vendor of the premises, Isaac R. Lane, to the vendee, Breekenridge. The latter, not having been disturbed in his possession of the premises, does not claim that his defense can be sustained, unless the case is brought by the answer within the provisions of section 557 of the code of civil procedure. That part of the section which is applicable to the case provides'that “ in all actions brought for the recovery of purchase-money of real estate by vendor against vendee, it shall be competent for such vendee, notwithstanding his continued possession, to set up by way of counterclaim any breach of the covenants of title acquired by him from the plaintiff, and to make any and all persons claiming any adverse estate or interest therein parties to the cause; and upon the hearing he shall be entitled to recourseagainstthe plaintiff’s demand, [for] the present worth of any existing lien or incumbrance thereon.”

We fail to discover anything in the facts stated in the answer or cross-petition of the defendant, Breekenridge, that brings his case within the provisions of this section of the code.

The covenants in the deed are co-extensive with the land described and its incidents and appurtenances, but they have no wider scope or effect. The answer does not set up any outstanding adverse estate or interest, nor any •existing lien or incumbrance upon the land conveyed. No breach of the covenants is alleged. The laud which is overhung by the projecting eaves and cornice, is not within the description of the parcel contained in the deed, but lies wholly outside of it.

It therefore follows, that if the right to maintain the projection, and to continue its use, was granted, it must have been granted as an appurtenance, in the nature of an •easement, appended to the estate described in the conveyance. In order, however, to be an appurtenance, and to pass as such by the grant, it must have been not only useful to the principal estate granted, but must have belonged to the grantor of the estate conveyed at the time of the conveyance. If the right to extend the roof and eaves over the adjoining premises, was secured by Lane before the •conveyance to Breckenridge, such right constituted an easement in the adjoining premises, and passed to Breckenridge as appurtenant to the estate granted; but if such right had not been secured, or did not exist, then no easement was created or acquired, and, of course, none wa,s •conveyed. This is the rule recognized by the authorities. “A grant of a thing will include whatever the grantor has power to convey, which is reasonably necessary to the enjoyment of the thing granted.” Morgan v. Mason, 20 Ohio, 401; Philbrick v. Ewing, 97 Mass. 134; United States v. Appleton, 1 Sumner, 492; 3 Wash. on Real Prop. 394.

An appurtenance is a “ thing belonging to another thing as principal, and which passes as incident to the principal thing.” 1 Bouvier L. D. 136. “Appendant is any inheritance belonging to another, that is superior o: more worthy.” Coke Litt. 121; Riddle v. Littlefield, 53 N. H. 508; 3 Wash. Real Prop. 394; United States v. Appleton, supra.

These authorities settle the principle, that that which is claimed to be an easement or servitude must not only be appendant in utility, and fitness for use, to the principal or dominant estate, but there must be a unity of title or right in the same person to both rihe superior estate and ■the easement claimed.

The fact that the use of that which is claimed as an appurtenance in the case now under discussion, is highly convenient, or seemingly indispensable to the enjoyment of the premises conveyed, added to the further fact that the same was actually enjoyed by the grantor at the time of the conveyance, does not constitute such projection an appurtenance, if the right to maintain and use it did not belong to him when the conveyance was made. Ownership of such, right is indispensable.

Then what follows ? Lane, the grantor, either had and •owned, as an appurtenance to 'the land sold, the right to maintain and enjoy the extension of the roof and eaves of the house, and to discharge the water therefrom upon the .adjoining premises of Mrs. Meek, and therefore conveyed such-right to Breckenridge, in which case there would be, and is, no breach of the covenants in the deed, or he did not possess or own such right, and consequently did not convey, nor covenaut to warrant and defend it. Iu either •case, or adopting either alternative, no breach of either of the covenants ensued, and hence the liability asserteddoes not exist.

But if we look into the evidence, as well as to the allegations of the cross-petition, it quite clearly appears that Mi’s. Meek was fully cognizant of, and assented to the projection of the roof and eaves over and upon her premises, at the time the foundation for the building was laid; and in consideration thereof accepted, received, and enjoyed a like permission to extend the eaves and roof of her own dwelling, over the land adjoining north; and it was in pursuance of this assent, and because of it, that said building on. inlot 650 was so erected. This being so, the only condition upon which the right to the defense rests, is destroyed by the facts. The action being for purchase-money, and there being no eviction or its equivalent, an outstanding title, lien, or incumbrance in some third person, is an indispensable prerequisite to the right to maintain such defense. The agreement, acted upon, and executed by the. parties, constituted a license irrevocable, so long as the house remained standing upon the premises.. When a license of this character is granted, and the licensee by reason of it erects a building on his own land, to the enjoyment of which the right or easement created by the license is indispensable or necessary, the license can not be revoked. Wilson v. Chalfant, 15 Ohio, 248; Veghte v. The Raritan Water Power Co., 19 N. J. 143; Russell v. Hubbard, 59 Ill. 335; Sterling v. Warden, 51 N. H. 217; Wickersham v. Orr, 9 Iowa, 260.

In such case, the license having been executed by the parties, the owner of the estate out of which the easement is carved, or upon which the servitude rests, is estopped from denying its existence, or from interfering with, or molesting, its proper use and enjoyment.

And such estoppel is as effectual to confer the right to the enjoyment of such easement as if the right thereto had been made the subject-matter of express grant; and upon conveyance of the estate to which the use is attached, the easement goes to the grantee as fully, and as effectually, as if the grantor owned the fee of the adjoining estate. Dark v. Johnston, 55 Penn. St. 170; Morgan v. Mason, supra; Wash. on Eas. and Serv. 4-6.

This results in holding the judgment of the district court en’oneous, and in making a final disposition of the casé here; for, while there seems to be little doubt that Mrs. Meek ought, in equity, to be estopped by her acts and conduct from denying the existence of the right to the easement claimed, yet the facts stated in the answer and cross-petition do not bring the case within the foregoing provisions of the code. Damages, resulting from a breach of some one of the covenants in the deed, must be shown to entitle the vendee to maintain such defense. No breach. is alleged, and therefore no ground for relief is stated. It is not the object of the provision of the code above recited, to authorize, nor does it permit an issue to be raised, and a controversy to be carried on, between defendants, respecting a subject-matter, or concerning lands, in which the plaintiff, suing for purchase-money, has no interest.

Motion granted, judgment reversed, cross-petition dismissed, and judgment for the plaintiff below.