Summary
stating that " right of way may be appurtenant where the servient tenement is not adjacent to the dominant, according to the rule established in the majority of jurisdictions."
Summary of this case from Alvey Development Corp. v. MackelprangOpinion
Docket No. 1, Calendar No. 41,743.
Decided March 17, 1942.
Appeal from Oakland; Hartrick (George B.), J. Submitted January 6, 1942. (Docket No. 1, Calendar No. 41,743.) Decided March 17, 1942.
Bill by George W. Akers and wife against Gerald Baril and wife for an injunction to restrain use of roadway.
Bill by Evelyn Setter against George J. Sass and others to establish a right of way and to restrain interference with such easement.
Cases consolidated. Decree in favor of defendants Baril and plaintiff Setter. Plaintiffs Akers and defendants Sass and others appeal. Affirmed.
Glenn C. Gillespie and Carl A. Braun, for plaintiffs and defendants Akers.
Verne C. Hampton, for defendants Baril and plaintiff Setter.
A tract of over 57 acres at the southeast corner of Wattles and Crooks roads in Royal Oak township, county of Oakland, Michigan, was divided into 9 parcels by its owner, George J. Sass. For better understanding of the facts, a rough drawing is given below which corresponds to plaintiffs' Exhibit 2, as modified by stipulation filed by the parties and testimony.
N.
WATTLES ROAD (17-Mile Road)
---- The other way | ------------------------------------------ | Par. | Par. | Par. | Par. || Par. | Par. | | 1 | 2 | 3 | 4 || 5 | 6 | | | | 3 1/2 | || | | W. CROOKS ROAD | | | acre | || | | | | | sub- | || | | | | | par. | || | | | | |-------| || | | | | | 1 1/2 | || | | | | | acre | || | | | | | sub- | || | | E. | | | par. | || | | |-------------------------------------------| ------|---------------| || | | | | 3 acres || | — --------------| | Par. 7 || | 25-foot strip | 10-acre |------------|| | or way in | tract | || | suit | | || | | | 17-acre || Tract | | | || | | | || | ------------------------------------------- S.
Two cases involving the same easement, claimed by Gerald Baril and wife and Evelyn Setter, were consolidated, tried and brought here on one appeal. The trial court held that the northerly 25 feet of the 10 acres immediately below parcels Nos. 1, 2 and part of 3 were impressed with an easement in favor of the claimants. George J. Sass, the former owner of the entire tract, did not plat the property but sold large lots by metes and bounds. Parcel 1 is bounded on the north by Wattles road, known also as the 17-Mile road, and on the west by Crooks road. Parcel 1 contains somewhat less than 5 acres of land. Parcels 2, 3, 4, 5 and 6 each contain 5 acres. South of parcels 3 and 4 there was carved out a 3-acre tract. The other two tracts consist of 10 and 17 acres each, as shown by the drawing. Evelyn Setter Sass's grantee and the owner of parcel 3, deeded the southerly 1 1/2-acre subparcel to Gerald Baril and wife. They built a home and a garage thereon. It will be noted that this 1 1/2-acre, the 3-acre and the 17-acre tracts have no frontage on the main roads. The 1 1/2-acre parcel is wholly isolated, at least for vehicles of all kinds, if it does not have the use of the easement as to ingress and egress claimed by its owners. There is a deep and wide depression between the 1 1/2 and the 3 1/2 acres of parcel 3, which is filled a large part of the time with water. The only way the owners of the 1 1/2 acres of property would have for their vehicles would be over the 25-foot strip, or by means of a bridge which they would have to build at a cost both prohibitive and out of proportion to the value of their entire property. The bridge would lead to the upper 3 1/2 acres owned by Mrs. Setter, mother of Mrs. Baril.
On May 3, 1928, Sass and wife, and others, deeded the 10-acre parcel to Frank and Jennie Hopkins. The deed after giving a description of the property stated:
"The first parties hereby reserve the north 25 feet of the above-described property for roadway purposes."
In June, 1937, Hopkins and wife sold on land contract to George W. Akers and Louise C. Akers the same property with the same north 25 feet excepted for roadway purposes. Both in 1928 and 1938, Hopkins and wife gave mortgages on the property containing the same description and the same reservation. Counsel stipulated that at the time Sass reserved the 25-foot strip for roadway purposes, he was also the owner of the entire parcel 3 and the 3-acre tract, which we have designated parcel 7 on the drawing. As late as June 23, 1937, in order to correct the description in the former deed, Sass and wife gave Hopkins and wife a quitclaim deed of the same property. The deed, as recorded, contained the same reservation as to the north 25 feet for roadway purposes.
In August, 1937, Sass and wife deeded the entire parcel 3 to Evelyn Setter and on the same day she deeded the southerly 1 1/2 acres thereof to Gerald Baril and Lila M. Baril. In 1940, Hopkins and wife gave a new land contract to Akers but dated it back to June 22, 1937, the date of the former contract, and left out the reservation of the 25 feet for right of way. At about the same time, Sass gave a quitclaim deed dated back to June 22, 1937, to Hopkins. It contained no reservation of the right of way. Subsequent to 1928 an additional right of way was established down the easterly side of parcel 4. This would give the owners of parcel 7 (the 3-acre tract) and the 17-acre tract means of ingress and egress. However, the reservation of an easement of way apparently for the benefit of all of grantor's remaining property adjacent to such first right of way, and existing at the time of the sale of the remaining property, cannot subsequently be extinguished by the former grantor.
The titles to both parcels 3 and 7 were in Sass, when he reserved the right of way in his deed to Hopkins, hence with respect to those parcels such reservation was not void under the rule that a stranger to a deed may take nothing by way of reservation therein. The language of the reservation does not specify whether the easement was intended to be in gross or appurtenant, nor, if the latter, appurtenant to what lands. An easement will never be presumed to be a personal right where it can be construed as appurtenant to some estate, notwithstanding the silence of the deed. Jones v. Stevens, 276 Mass. 318 ( 177 N.E. 91, 76 A.L.R. 591); Lindenmuth v. Safe Harbor Water Power Corp., 309 Pa. 58 ( 163 A. 159, 89 A.L.R. 1180). Where an owner conveys part of his land and reserves an easement over it, without specifying that such easement is to be appurtenant to land retained by him, the surrounding circumstances, including the adjacency of the way to the land retained, may be considered by the court in order to ascertain the intention that the easement was intended to be appurtenant thereto. Tusi v. Jacobsen, 134 Or. 505 ( 293 P. 587, 71 A.L.R. 1364). The way in suit, viewed in the light of the broad language reserving it and the further fact that the grantor in the deed retained title to lands adjacent thereto, would naturally be construed as appurtenant to all such adjacent and retained lands. Both Hopkins and Sass, the former owners, testified that they intended to reserve the right of way for the benefit only of the 3-acre and 17-acre parcels, but when the latter did not require this easement as a way of necessity because of the other way over parcel 4, such 25-foot right of way was forgotten to all intents and purposes by the witnesses until the grantee of the south 1 1/2 acres of parcel 3 began using it.
John, the husband of Evelyn Setter, to whom Sass deeded parcel 3, stated that at the time the parcel was purchased from Sass, the latter stated that the right of way was up to the owners connecting with that road, that it was for the use of anyone connecting with it, that all the property touching the roadway was entitled to it. Evelyn Setter largely corroborated what her husband had stated with regard to the conversation with Sass. Setter further testified that they knew at the time that the southerly 1 1/2 acres without means of ingress and egress would otherwise be inaccessible because of the wide natural depression in soil which was impassable because filled with water most of the year and bridgeable only at a prohibitive cost, that one could not drive from the 17 Mile Road to the 1 1/2 acres in the very driest part of the year. Baril testified that he had graveled the roadway, that it had been used by others, that he put the roadway in in the fall of 1938, and his attention was first called to the dispute about the roadway after he had built his home, that he went to see defendant Akers about it, who promised to look up his deed, and, not hearing any further from him, he (Baril) went to the township hall and the plats there showed the roadway, that he looked up the deed to the Akers' property, that he dumped 150 yards of gravel on the road prior to the time that he received a letter telling him to desist. He also testified that he saw Sass prior to the time that he built his house and Sass told him that the road was there but had never been publicly dedicated, that Sass stated that he saw no reason why he should not go ahead and open up the road. He admitted that no one else used the road until after he graveled it and built a runway going to Crooks Road. Hopkins and wife did not ask that the reservation be limited when they took the deed from Sass, in which the latter reserved 25 feet for roadway purposes. They accepted and recorded the deed with the unqualified reservation, and thus estopped themselves and their successors from denying the use of the road to abutting property owners who bought in the belief that they were entitled to an easement which was necessary so as to give an appreciable value to the rear part of lot 3 retained by Sass at the time he gave the deed containing the reservation. We are not impressed by the fact that, when the dispute arose, Sass and the others executed new instruments, dating them back, in an effort to cut off the easement by omitting any reference to it in the new deed. Nor do we believe that Mrs. Setter and her grantees should be relegated to an action at law against Sass for misrepresentations.
The additional point is raised by counsel of Akers that the original grantee of parcel 3 now owns only the north 3 1/2 acres thereof, which subparcel is in no way adjacent to the way in suit, and, therefore, if a servitude be imposed, its benefit should be confined to the south 1 1/2 acres thereof. A right of way may be appurtenant where the servient tenement is not adjacent to the dominant, according to the rule established in the majority of jurisdictions. See annotation in 76 A.L.R. 597-603, especially the subdivision entitled, "Subdivision of dominant estate," 76 A.L.R. 600. The easement was for the benefit of all land which adjoined the way when it was created, no more, no less. No questions are presented on this record as to the rights or duties as between the owners of the 3 1/2-acre subparcel and those of the 1 1/2-acre subparcel, and we do not pass upon any. We simply hold that both are entitled to the way as against the persons holding the 10-acre tract on the principle that undisclosed intentions furnish no defense to claims of innocent third parties misled by positive word, deed or act.
The testimony is in dispute but we believe that the instruments on record together with the testimony of defendant Setter and Gerald Baril prove that the right of way not only was created but continued to exist.
The decree of the circuit court declaring the easement appurtenant to all of parcel 3 is affirmed, with costs to appellees.
CHANDLER, C.J., and BOYLES, NORTH, STARR, BUSHNELL, and SHARPE, JJ., concurred. WIEST, J., did not sit.