Wood v. Grayson

22 App. D.C. 432, 1903 U.S. App. LEXIS 5546

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 6, 1903
• Docket: No. 1304
• Status: Published

Opinion

Mr. Chief Justice Alvey

delivered the opinion of the Court:

1. At the time of the making of the deed of trust to Warner and Wine, on the 22d of January, 1897, as we have before stated, there was no building or improvement on the ground conveyed by that deed. Nothing was conveyed but the bare ground within the limits described in the deed. But with respect to the second deed of trust, that to Grayson and Heald, made on the 20th day of December, 1897, the subject of the conveyance was in a different condition. Before the making of this latter deed, Haller, the grantor or mortgagor, had erected on the ground conveyed, the building known as the Victoria fiats, an apartment house; and this building in its south and west walls had many windows and doors therein, deriving light and air from and over the adjoining property owned by the said Haller, the mortgagor. It had also porches on the south and west sides, projecting over the adjoining ground some 5 or 6 feet, and areaways in front of the doors and windows in the ground story on those sides of the building. All these constituted parts .of the building, and to their use and enjoyment the light and air furnished from the adjoining open space were necessary, and without which the value of the building would be seriously impaired. Haller certainly had the right so to construct the building. The deeds of trust made by him of the several parcels of the two lots were in their nature and effect mortgages to secure debts. Hitz v. Jenks, 123 U. S. 298, 31 L. ed. 157, 8 Sup. Ct. Rep. 143; Olcott v. Bynum, 17 Wall. 44, 21 L. ed. 570. Being mortgagor, he was the real owner of the several parcels in fee. The equity of redemption is considered to be the real and beneficial estate; and it is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law. Except as against the mortgagee, the mortgagor, while in possession and before foreclosure, is regarded as the real owner, the mortgage or deed of trust being a mere security for debt, upon the payment of which the mortgage or deed of trust becoming extinct. And such being the right, and power of Haller, the mortgagor, over the divided parcels of the two lots, it was perfectly competent to him, not only to make the second deed of trust of the parcel of ground upon which the Victoria flats building had been erected, but to create and annex to that building, a de facto easement for light and air, and projecting porches, over the adjoining vacant ground belonging to the mortgagor, as adding security for the debts embraced by the deed of trust to Grayson and Heald; but not to the prejudice of any prior mortgage or deed of trust covering the adjoining vacant parcel of ground.

It is certainly a well-settled principle, indeed not questioned, that a good title to the passage of light and air to windows may be given by grant or express agreement; and, it being a well-settled rule of construction that the grant of a principal thing shall be held to carry with it all that is reasonably necessary for the enjoyment of the thing granted, for the purpose for which, according to the obvious intent of the parties, the grant Avas made; and that a grant is always to be taken strongly against the grantor, — it would appear that the right to light and air Avould pass upon the conveyance of the building, under the circumstances, by the grant itself, where, as in this case, light and air are apparently necessary, even without any special Avords of conveyance. Pomfret v. Ricroft, 1 Wms. Saund. 320, and notes; Blakesley v. Whieldon, 1 Hare, 176, 180. But, without deeming it necessary to apply the principle as thus broadly stated, the deed of trust to Grayson and Heald, by express terms, not only recognizes the existence de facto, but the user, of easements of ways, rights, and privileges, as appurtenant to the said building. This is the clear import of the deed of trust. It is true, the deed, by its terms, does not limit the extent of the right of easement of light and air over the adjoining ground on the south and west sides of the building, but the acts and dealings with the subject by Haller, Wood, and Talbott would clearly indicate that they found that a strip or space 10 feet wide on the south and west sides of the Victoria flats building was reasonably necessary to supply the light and air to the rooms and apartments on those sides of the building. It is competent to arrive at the necessary extent of the space or area by what the parties have done in regard to it, and what they have recognized as reasonably necessary in actual use. Hall v. Lund, 1 Hurlst. & C. 676, 683.

This case would seem to be clearly within the principle of the decision of the Supreme Court of the United States, in the case of Shepherd v. Pepper, 133 U. S. 626, 650, 33 L. ed. 706, 715, 10 Sup. Ct. Rep. 438, 446. The facts in that case, as stated in the headnotes of the report, are these: S. gave two deeds of trust of a lot of land in the District of Columbia to secure loans made by B. & P. Afterwards he gave a deed of trust of the same lot of ground to secure a loan made by C., that deed covering also a lot in the rear of the first lot, and fronting on a side street. At the time all the deeds were given there was a dwelling on the premises, the main part of which was on the first lot, but some of which was on the rear lot. P., on an allegation that B., a trustee in each of the first two deeds, had refused to sell the property covered by them, filed a bill asking the appointment of a trustee in the place of those appointed by the first two deeds. A new trustee was appointed and the property was sold under the first deed. S. then filed a bill to set aside the sale, and P. filed a cross bill to confirm it. That bill was dismissed; and P. then filed a bill against S. and C., and all necessary parties, to have a trustee appointed to sell the land covered by all three trust deeds, and the improvements on it, to have a receiver of the rents and profits appointed, and to have the rents and proceeds of sale applied first to pay P. A receiver was appointed, and a decree made for the sale of the entire property, as a whole, by trustees whom the decree appointed, and for the ascertainment by the trustees of the relative values of the land covered by the first two trust deeds and the improvements thereon, and of the rear piece of land and the improvements thereon, and for the payment to P. of the net proceeds of sale representing the value of the land and improvements covered by the first two deeds, less the expenses chargeable thereto, and of the residue to C., and, out of the rents, to P. what he had paid for taxes and insurance premiums, etc. That decree was affirmed by the Supreme Court of the United States; Mr. Justice Miller dissenting upon one of the propositions involved, but which is not important to the question now under consideration.

In the opinion of the court, as delivered by Mr. Justice Blatchford, it is said: “In regard to Mrs. Gray, the letter to her, written by Mr. Brown of the firm of Fitch, Fox & Brown, who were negotiating for her the loan to Shepherd, the letter being dated, * * * speaks of the loan as one ‘to be secured by a second mortgage, the prior mortgage- being for $45,000.’ Besides this, the first two deeds of trust were recorded respectively June 3, 1874, and March 24, 1875, and they conveyed, to secure Pepper, the premises described in them, ‘together with all the improvements, ways, easements, rights, privileges, and appurtenances to the same belonging or in any wise appertaining, and all the estate, right, title, interest, and claim, whatsoever, whether at law or in equity, of the said parties of the first part, of, in, to, or out of the said piece or parcel of land and premises.’ The improvements and easements in question were visibly necessary f or the dwelling house as then constructed, and were visibly upon, or required the use of, sublot A., as stated by Shepherd as before recited. Mrs. Gray is only a mortgagee, and not the owner in fee of sublot A; and her interest in the property is subject to the prior and subsequent interests of other parties, as those interests are usually ascertained and administered by a court of equity for the benefit of all concerned. It is not equitable that she should be allowed to use her mortgage on sublot A to prevent a sale of the entire lot 3. Her only right can be to have the proceeds of sublot A applied first to the payment of her debt, and that right is secured by.the decree appealed from.”

In the case of Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300, while some of the language employed in the opinion of the- court would seem to be broader thau was necessary for tbe decision on tbe facts of tbe case, tbe principle upon which the case was decided would seem to be strictly in line and accord with the principle just cited from Shepherd v. Pepper, 133 U. S. 626, 650, 33 L. ed. 706, 715, 10 Sup. Ct. Rep. 438. And in the recent case in this court of Frizzell v. Murphy, 19 App. D. C. 440, the same principle was held and applied to a state of facts quite analogous to the facts of the present case.

This principle has been very clearly stated and illustrated by Mr. Justice Story in the case of United States v. Appleton, 1 Sumn. 492, Fed. Cas. No. 14,463. There a block of buildings, consisting of a central building and two wings, was erected in 1808, with a piazza in front of the central building, and side doors in the wings, which opened on and swung over the piazza, the upper parts of which were used as windows. The center building was occupied by the United States as a custom house, under a lease from 1808 to 1816, when they purchased the same in,fee, and had from that time been in possession thereof. The wings, projecting beyond the front of the custom house, were sold in 1811 to other parties, and were used as stores; and it was held that those parties were entitled under the conveyance, independent of the lapse of time, to the use of the side doors and windows therein, and passage therefrom, as they were used at the time of the conveyance. That where a house or store is conveyed by the owner thereof everything passes which belongs to, and is in use for, the house, or store, as an incident or appurtenance. And after stating the well-established principle in the construction of grants, and citing the authorities therefor, the learned justice said: “In truth, every grant of a thing naturally and necessarily imports a grant of it, as it actually exists, unless the contrary is provided for. Here, the side door in question was in actual use, as an appurtenance de facto, at the time of the grant. Could the owners of the central building on the next day after have shut it? Could they have shut out all the light of the window in the upper part of it ? Could they have built down to Custom House street, and filled up the piazza ? In my opinion it is most clear that they could not. Their grant carried by necessary implication a right to the door and window, and the pas-¡ sage, as it had been, and as it then was, used.”

Doubtless, there is a diversity of judicial opinion in the-American courts upon the subject of implied grant of light and air, but not where there is a clear intent, or [the] terms of the: grant [provide] that such right should exist and be conveyed with the principal object of the grant. By the building of the-Victoria flats, and the placing in the south and west walls thereof the windows and doors, and the erection of the porches thereon, overhanging the adjoining ground of the owner of the building, was created an easement de facto as an appurtenant to the building, and this easement was conveyed by the deed of trust to Grayson and Heald. It is clear, we think, that Haller, after the execution of that deed, could not have closed up the doors- and windows in the south and west walls of the building, or taken down the porches, without the consent of the trustees and parties interested in the trust of that deed; as by so doing he would have impaired the security for the debts, for which that deed was given, and thus derogated from the operation of his-grant.

Recognizing the conflict of decision of the American courts: upon the subject of implied grants of light and air, Professor Washburn, in his Treatise on Easements, p. 618, has deduced a. conclusion from the authorities, that would seem both just and' reasonable, and which has been adopted by several of the American courts. That conclusion is, that “so far, therefore, as weight of authority, both English and American, goes, it would seem that if one sell a house, the light necessary for the reasonable enjoyment whereof is derived from and across adjoining land, their belonging to the same owner, the easement of light and air over such vacant lot would pass as incident to the dwelling house, because necessary to the enjoyment thereof; but that the law would not carry the doctrine to the securing of such easement, as a mere-convenience to the granted premises.”

Without referring to other authorities, or making further comment, we are clearly of opinion that the deed of trust to Grayson and Heald, conveying the Victoria flats building, carried, as a. de facto appurtenance thereto, an easement in the 10-foot strip of land along and adjoining the south and west walls of said buildings, to admit light and air to the doors and windows in said walls, and the free use and enjoyment of the porches along said walls as part of the buildings

2. It is next objected to the decree of the court below that it adjudges and directs that, in the event that the property embraced in the several deeds of trust should not be sold in its entirety and as a whole, then, the Victoria fiats building, with a strip of land along the south and west sides thereof, 10 feet in width, shall be sold as one parcel, — not the mere easement in the 10-foot strip, but the corporeal estate therein, as part of the ground covered by the deeds to Warner and Wine, and to Grayson and Heald, respectively. It further directs that the amount of purchase money representing the value of the said strip of ground, after payment of the notes secured by the deed of trust to McReynolds and Meriwether, should be applied, first, to the payment of the debts secured by the deed of trust to Warner and Wine, and, secondly, to the payment of the debts secured by the deed of trust to Grayson and Heald, to the extent required for that purpose.

In thus decreeing the sale of the 10-foot strip of ground as a corporeal annex and as part of the property of the Victoria flats building, with direction, in a certain event, to distribute any portion of the proceeds of sale of that strip to the satisfaction of the debts secured by the deed of trust to Warner and Wine, we think there was error. As we have already stated as a conceded fact, at the time of the making of the trust deed to Warner and Wine, the Victoria flats building was not in existence, and the parts of the two lots of ground embraced in the deed are described by certain and definite limits and bounds. There was, therefore, nothing to which an easement by user or necessity could be appurtenant, such as is claimed in this case. It is well-settled principle that, where there is a conveyance of a specific parcel of land carved out of a larger parcel held by the grantor and described by metes and bounds, nothing which is not included within the boundaries so described passes by the deed; and therefore a right of way through the premises of the grantor does not pass. Grant v. Chase, 17 Mass. 443, 9 Am. Dec. 161; Washb. Easements, *26. Moreover, an easement, or right in the nature of an easement, is not a right .to land nor to any corporeal interest in land; and hence a grant of a right of way does not convey the soil over Avhich the way passes to the grantee, and a fortiori not in the case of a grant of a mere right to light and air over á strip of ground. Goddard, Easements, 2. A mere easement may, without express words, pass as an incident to the principal object of the grant; but it would be absurd to allow the fee or other estate in one piece of land, not mentioned in the deed, to pass as appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries. The well-settled principle is, that land cannot be appurtenant to land. Co. Litt. 121 b; Harris v. Elliott, 10 Pet. 25, 53, 9 L. ed. 333, 344; United States v. Harris, 1 Sumn. 21, 37, Fed. Cas. No. 15,315. The deed of trust to Warner and Wine conveyed nothing except the ground described therein, and the building subsequently erected thereon and which became a part of the parcels of the lots conveyed. But as to the deed of trust subsequently made to Grayson and Heald, that deed not only covers the same ground and the building thereon as that embraced in the deed of trust to Warner and Wine, but also carries a right, by way of easement, to light and air over the adjoining strip of ground on the south and west sides of the Victoria flats building, of 10 feet width, and the free use of the porches on said sides of the building overhanging said strip of ground. There was therefore error in directing the sale of the Victoria fiats building together with the strip of ground 10 feet wide as an annex or appendant to the building, — such strip of ground not being embraced in either deed to Warner and Wine, or that to Grayson and Heald.

3. The next objection to the decree is that it authorizes the sale of the property as a whole, — that is, the entire two lots of ground, with the improvements thereon, without reference to the previous division into parcels. In this we do not perceive that there was error. It is in accordance with established practice of courts of equity, where the entire subject-matter, though in separate parcels, and all the parties concerned therein, are before the court, and subject to its direction and control. As we have before stated, all the debts secured by the several deeds of trust are overdue, and the rights and interests of the parties under the several deeds of trust require the property to be sold. In the case of Shepherd v. Pepper, 133 U. S. 626, 650, 33 L. ed. 706, 715, 10 Sup. Ct. Rep. 438, 446, a similar objection to that here made was made to the decree in that case. Bnt the Supreme Court, in disposing of the objection, said: “The present bill is one to obtain a decree for the sale of encumbered premises, and the application of the proceeds of sale to discharge the encumbrances according to priority. The debts to Pepper and to Mrs. Gray are overdue; and under such circumstances a court of equity, on the application of a junior encumbrancer, will provide for the sale of the entire encumbered property [consisting of different parcels], if the circumstances of the case show that the interests of the mortgagor and of the encumbrancers require the sale;” citing many authorities for the practice. “This authority,” says the court, “is properly exercised in the case of deeds of trust, where all the encumbrances are due and where the plaintiff has a first lien on som° of the property sought to be sold, and Avhere all the encumbrancers are parties to the suit. Here, Pepper has a first lien on the bulk of the property sought to be sold, and a second lien, as decreed, on the small remaining portion ; and the debts secured by the first two deeds of trust were all overdue when the bill in this case was filed, as well as the debt due to Mrs. Gray. Under such circumstances the mere nonassent of Mrs. Gray ought not to prevent the court from doing what is equitable in regard to the claims of Pepper, as well as those of herself.” See also the case of Olcott v. Bynum, 17 Wall. 44, 21 L. ed. 570.

The decree in the alternative provides that, if the trustees should find it to be more advantageous to the interests of the parties, they should divide the property and sell the parcels thereof separately; in which case they are required to offer the Victoria, flats building part together with the strip of land along the south and Avest sides thereof, 10 feet in Avidth, as one part, and the residue in such parcels as they should find to be advantageous and advisable. To this we perceive no objection, except in respect to the annexation, and selling the 10-foot strip of adjoining ground together with the Victoria flats building parcel; that direction of the decree we have shown to be erroneous and unwarranted. If the property should be sold in its entirety, and should bring a price more than sufficient to pay costs, and expenses of sale, and all the trust debts secured by the deeds of trust, in their order of priority, in such ease, there could be no difficulty in apportioning the proceeds of sale among the parties entitled thereto. In that event it would only be necessary to show by proof the value, as represented by the sale, of the flats-building parcel, with and without the value of the easement added. After payment of its portion of costs and expenses, the value of the flats-building parcel, without the value of the easement added, would be distributable to the payment of the debts secured by the deed of trust to Warner and Wine; and the residue of such proceeds thus produced, together with any balance of the value, as represented in the proceeds of sale, of the easement over the 10-foot strip of ground, after payment of the debts secured by the deed of trust to McEeynolds and Meriwether, on the parts of the lots not embraced in the deed to Warner and Wine, but embracing the 10-foot strip, will be distributable to the debts and interest secured by the deed of trust to Grayson and Heald; and any balance of proceeds that may remain will be distributable to the owners of the equity of redemption in the premises sold.

But if the property decreed to be sold is not sold in its entirety, and as a whole, but in parcels, the manner of apportioning the proceeds of sale will be somewhat differently made, though not substantially variant in result from that just stated. The parcel comprising the Victoria flats, together with the easement over the 10-foot strip of ground adjoining on the south and west sides of the flats building, will be sold as one parcel; and the proceeds of sale thereof, after deducting proper proportion of costs and expenses, will, less the value in such proceeds as may be shown by proof of such easement, be applicable to the payment of the debts secured by the deed of trust to Warner and Wine. The residue of the proceeds arising from the sale of that parcel, without the value of the easement ascertained by proof as aforesaid, together with whatever balance of the value of the easement so ascertained that may remain after the payment of the debts and interest secured by the deed of trust made to MeReynolds and Meriwether, will be applicable to the payment of the debts and interest secured by the deed of trust to Grayson and Heald. If any balance of the proceeds of sale or sales shall remain, after thus discharging the debts and interest, in the order stated, and costs and expenses of sale, that balance will be distributable to the owners of the equity of redemption.

4. There is also some objection made to the decree because of the appointment of one of the trustees to make the sale of the property under the decree; that party being one of the complainants and one of the trustees in a deed creating a junior encumbrance upon a part of the property. But the question of the selection and appointment of trustees to make sales under decrees is a matter exclusively within the power and discretion of the court passing the decree, and from whose action in respect to such appointment no power of review exists in this court.

We shall reverse the decree and remand the cause that the decree appealed from may be modified, and be made to conform to the foregoing opinion of this court. Under the circumstances of the case, we shall direct the cost of this appeal to be paid out of the fund produced by the sale of the property decreed to be sold; and it is so ordered. Decree reversed and cause remanded.