Whiting v. Gaylord

34 A. 85, 66 Conn. 337, 1895 Conn. LEXIS 67

• Court: Supreme Court of Connecticut
• Decided: June 22, 1895
• Status: Published

Opinion

Andrews, C. J.

The division wall, one half of which was conveyed to the plaintiff by her deed, and the other half of which was conveyed to the defendant by his deed, has not been injured. It remains as it was before the defendant rebuilt. No damages were claimed, and none were awarded, for anything done to it.

The defendant did certain acts on his own land, lawful in themselves, and without negligence. In doing such acts in that way some damage was unavoidably done to the plaintiff. The trial court held that the defendant was liable to the plaintiff for the damages so caused, as an insurer. The defendant insists that the trial court erred in so holding. It is to be observed that the finding does not, in terms, set out any relations existing between the plaintiff and the defendant by reason of which he is subjected to the liabilities of an insurer and she entitled to the rights of one insured. If there is such a relation it is to be gathered from the facts of the case.

It is found that the method of constructing this double dwelling-house would have been disclosed by an inspection, if the defendant had made one before he purchased. This finding can only mean that the method by which these joists were supported, was not open, apparent, and visible. And that such means of support was not necessary to the maintenance of the plaintiff’s house is shown by the fact that another means was readily substituted by the defendant.

The argument in this court in behalf of the plaintiff, proceeds on the theory that the plaintiff had an easement of support for the east end of the joists which the defendant cut off upon the defendant’s partition, although that partition was six feet from the division wall of the house; an easement of support precisely like, and to the same extent as, the easement for support which each of the owners of a strict party wall has in such a party wall; and that the defendant is liable to the plaintiff as an insurer, for all the damages occasioned to her by reason of his interference with such support.

It has been held in some cases that where one owner of a party wall makes any change in it for his own benefit, and when not required for the purposes of repair — he is absolutely responsible for all damage which is thereby occasioned to the other owner. Brooks v. Curtis, 50 N. Y., 645; Schile v. Brokhaus, 80 id., 614; Eno v. Del Vecchio, 6 Duer, 17.

It is perhaps open to some doubt whether the rule of liability expressed in these cases would be applied to the same extent in this State. We have no occasion now to discuss that question. It would not be applied here or elsewhere, except in a case where a strict party wall was shown to exist. In the absence of some statute, a strict party wall can exist only by prescription, or by contract express or implied. Gilmore v. Driscoll, 122 Mass., 207; Quinn v. Morse, 130 id., 317; List v. Hornbrook, 2 W.Va., 340; Bonomi v. Backhouse, El. B. & E. 622, 9 H. L. Cases, 503. It is in these cases pointed out, that the right to the support of land — lateral and subjacent — in the means by which it is acquired, is entirely different from the right to have a building supported upon the land of another. The former is in the nature of a right of property analogous to the flow of a stream of water, or of air, while the latter can only be founded upon a prescription, or on a grant express or implied. Wyatt v. Harrison, 3 B. & Ad., 871; Partridge v. Scott, 3 M. &. W., 220.

But a right by prescription in the plaintiff to have these joists supported as on a party wall, does not seem to he shown; nor is such right shown by any easement of less technical character. To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised. Parker v. Hotchkiss, 25 Conn., 321; Gilmore v. Driscoll, 122 Mass., 207; Sullivan v. Zeiner, 98 Cal., 346; Mitchell v. Mayor, etc., of Rome, 49 Ga., 25.

While this house was owned as one house by the common grantor of the parties, there was a unity of possession in the now dominant and servient estates; and the enjoyment of the quasi easement by each part of the house, was in no sense adverse; and that period cannot be regarded as aiding to confer any right upon the plaintiff to its further enjoyment. Hickox v. Parmelee, 21 Conn., 98; Manning v. Smith, 6 id., 289; Tucker v. Jewett, 11 id., 322; Johnson v. Jordan, 2 Met., 234; Hieatt v. Morris, 10 Ohio St., 523; Tunstall v. Christian, 80 Va., 1; Stanford v. Lyon, 22 N. J. Eq., 33. Since she became the owner, sufficient time has not elapsed to raise a prescription.

There is no evidence, indeed there is no claim of an express contract between this plaintiff and defendant, by which a party wall, or any easement of support, was established, or of any such contract by either of them with their grantor. So far as the deeds appear, the plaintiff took nothing but the land granted to her, that is, the land on the west side of and up to the center line of the division wall; while the defendant took all the land on the east side of that center line. Neither took any right in the land of the other. The plaintiff’s title to the easement of support must, therefore, depend entirely on an implied grant. When a right or privilege is claimed as being annexed to one’s land to use the adjacent land of another for a special purpose, whether arising from prescription (a prescription supposes a lost grant) or from an implied grant, or reservation, the existence of the alleged easement will, in general, depend upon an affirmative answer to the inquiry, is it open, visible, continuous and necessary. The purpose of the inquiry is to ascertain the intent of the grant. It is a matter of contract, and must depend upon the construction of the conveyance. And so the real question is: What construction will the law put upon a conveyance where the intention of the parties in this respect is not expressed in terms ?

The plaintiff contends that, as an inspection of the premises would have shown how the original house was constructed, it must be implied that she took her part of the house with the easement of support which she now claims; and. that the defendant took his part of the house subject to such easement in her favor. The finding does not indicate what is intended by the expression “ an inspection.” An inspection may be very general, or it may be very minute. It may be made by one having no skill, or it may be made by one having great skill. The claim of the plaintiff’s counsel indicates that they mean a careful inspection by a person who is reasonably familiar with the premises.

The leading case cited by the plaintiff, and indeed the only one we have found which goes far enough to fully support her claims, is Pyer v. Carter, 1 H. & N., 916. In that case the owner of a single house converted it into two houses. While he was the sole owner he had constructed a drain under both of them. He sold one of them to the defendant, and afterwards the other one to the plaintiff. The defendant stopped the drain so that the water from the' plaintiff’s house could not flow off. It was not proved that at the time of the purchase the defendant knew of the position of the drain. Judgment was given for the plaintiff. In deciding the case the Court of Exchequer said the defendant took his part of the house “ such as it is,” subject to all the apparent signs of servitude which existed; and that by “ 1 apparent signs ’ must be understood not only those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject.” This case was decided in 1857. But it has since been repeatedly and distinctly disapproved in England. •

In Suffield v. Brown, 4 De G. J. & S., 185, decided in 1864, in the Court of Chancery, Lord Chancellor WestBTJRY, in respect to Pyer v. darter, after stating the case, said: “ It was held that the second purchaser was entitled to the ownership of the drain, that is, to a right over the freehold of the first purchaser, because, said the learned judges, the first purchaser takes the house 4 such as it is.’ But with great respect, the expression' is erroneous, and shows the mistaken view of the matter; for in a question, as this was, between the purchaser and the subsequent grantee of his vendor, the purchaser takes the house not ' such as it is,’ but such as it is described and sold and conveyed to him in and by his deed of conveyance; and the terms of the conveyance, in Pyer v. Carter, were quite inconsistent with the notion of any right or interest remaining in the vendor. It was said by the court that the easement was ' apparent, because the purchaser might have found it out by inquiry; but the previous question is whether he is under any obligation to make inquiry, or would be affected by the result of it; which, having regard to his contract and conveyance he certainly was not. Under the circumstances of the case of Pyer v. Carter, the true construction was, that as between the purchaser and the vendor, the former had the right to stop and block up the drain where it entered his premises, and that he had the same right against the vendor’s grantee. I cannot look upon the case as rightly decided, and must wholly refuse to accept it as any authority.” In another part of the opinion the Lobd Chancellor said: “ When the owner of two tenements sells and conveys one for an absolute estate therein, he puts an end, by contract, to the relation which he had himself created between the tenement sold and the adjoining tenement; and discharges the tenement so sold from any burden imposed upon it during his joint occupancy; and the condition of such tenement is thenceforth determined by the contract of alienation and not by the previous user of the vendor during such joint ownership. * * * It seems to me more reasonable and just to hold that if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, rather than to limit and cut down the operation of a plain grant * * * by the fiction of an implied reservation. If this plain rule be adhered to, men will know what they have to trust, and will place confidence in the language of their contracts and assurances.” In Crossley, etc. v. Lightowler, L. R. 2 Ch. App., 478, decided in 1867, Lobd Chelmseobd said in respect to the case of Pyer v. Carter, “ Lobd Westbuby however, in the case of Suffield v. Brown, refused to accept the case of Pyer v. Carter as an authority,” and added : “I entirely agree with the view. It appears to me to be an immaterial circumstance that the easement should be apparent and continuous, for non constat that the grantor does not intend to relinquish it unless he shows the contrary by expressly reserving it.” See also Wheeldon v. Burrows, L. R. 12 Ch. Div., 31. Other English cases are, Russell v. Harford, L. R. 2 Eq., 507; Morland v. Cook, L. R. 6 Eq., 252; Davies v. Sears, L. R. 7 Eq., 427; Brown v. Alabaster, L. R. 37 Ch. Div., 490.

The cases in this country which have referred to Pyer v. Garter have none of them, so far as we can learn, ever followed it to its full extent. The American cases have with almost entire unanimity limited easements by implied grant to such as were open, visible, — such as would be apparent to an ordinary observer, — continuous, and necessary to the enjoyment of the estate granted or retained. Carbrey v. Willis, 7 Allen, 364; Randall v. McLaughlin, 10 id., 366; Philbrick v. Ewing, 97 Mass., 133; Lampman v. Milks, 21 N. Y., 505; Butterworth v. Crawford, 46 id., 349; Henry v. Koch, 80 Ky., 394; Evans v. Dana, 7 R. I., 306; Providence Tool Co. v. Corliss Steam Engine Co., 9 id., 564; Dunklee v. Wilton R. R. Co., 24 N. H. 489; Warren v. Blake, 54 Me., 276; Janes v. Jenkins, 34 Md., 1; Ingals v. Plamondon, 75 Ill., 118; Fetters v. Humphreys, 18 N. J. Eq., 263; S. C., 19 id., 471; Denton v. Leddell, 23 id., 67; Parsons v. Johnson, 68 N. Y., 62; Griffiths v. Morrison, 106 id., 165; Root v. Wadhams, 107 id., 384.

These cases differ considerably as to the degree of necessity which must exist in order to raise the implication that the easement, or quasi easement, passes ; but they all concur in the rule just stated, that it must be one which is open, visible, and necessary.

In this State the rule of construction, settled by a series of decisions, is that the subject-matter of a deed is to be ascertained from its premises, and that by a deed of land, described as such, nothing passes except what is fairly included in the premises ; that an easement not naturally and necessarily belonging to the premises, will not pass. In Manning v. Smith, 6 Conn., 289, a grantor conveyed land upon which ended a pipe carrying water from a spring upon land reserved by him in the deed; the words “ to have and to hold the premises, with all their appurtenances,” followed the description of the land. The grantee insisted that he had by these words acquired the right to have the water flow to his land. This claim was denied. The court said: “It is insisted, that the deed * * * conveyed the easement in question. The words of the deed describe only the land: — it is added ‘ to have and to hold the premises, with all their appurtenances' * * * The deed * * * did not convey any right to the easement, unless it belonged naturally and necessarily, to the premises. If the conduit had been placed there a month previously, by a stranger, or by the defendant, it would hardly be said, that it was a part of the freehold. It would not be strictly necessary to its enjoyment. Co. Litt. 1216. 122a. ‘ By the grant of a messuage, with the appurtenances, a shop annexed to it for thirty years does not pass, unless it be found to be a part of the messuage.’ Bryan v. Wetherhead, Cro. Car., 17. The subject-matter of the grant in the deed, is the land, and that does not include the easement, as we have seen. Can, then, the thing granted be enlarged, by the words ‘ to have and to hold with the appurtenances ’ ? It is in the premises of the deed that the thing is really granted. 3 Cruise Dig., 47, § 51; The Abbesse of Sion, 33 Hen., 6, 33, cited Hob., 161; Needler v. Bishop of Winchester, id., 231; Whalley v. Thompson, 1 Bos. & Pul., 371; Grant v. Chace, 17 Mass., 443. It is the office of the habendum sometimes to enlarge the estate granted, but never the subject-matter of the grant. * * * The plaintiff, grantee of the defendant, by the deed, might have secured to himself this privilege, by express grant, or by covenants. He has taken his deed; and it is not for the court to give it a construction not authorized by law.” This case of Manning v. Smith is cited with approval in Miller v. Scolfield, 12 Conn., 343; in Giddings v. Emerson, 24 id., 546, and in Williams v. Wadsworth, 51 id., 308; see also Sheppard’s Touchstone, 89; 3 Cruise Digest, § 51.

Implied grants of land, or of easements, or of any interest in land, are allowed here when allowed at all, to a very much more limited degree than in the other States. These decisions are in accordance with what has always been the policy of our recording system, that the title to all interests in land shall appear on the land records, so that they may be easily and accurately traced. 1 Swift’s Dig., 122; North v. Belden, 13 Conn., 380; Herman v. Deming, 44 id., 124; Cake v. Peet, 49 id., 501; Salisbury Savings Society v. Cutting, 50 id., 113. We think this plain policy should be adhered to, so that men will know what they have to trust, and can place confidence in the language of all conveyances as they find them recorded. And inasmuch as the easement of support which the plaintiff claims was not an open and visible one, and, although convenient, was not necessary to the enjoyment of her part of the house, we think she has shown no title to it, and that she cannot recover.

There is error on the defendant’s appeal, and no error on the plaintiff’s appeal.

In this opinion the other judges concurred.