Opinion
Docket No. 63.
Submitted April 8, 1927.
Decided October 3, 1927.
Appeal from Oakland; Gilbert (Parm C.), J., presiding. Submitted April 8, 1927. (Docket No. 63.) Decided October 3, 1927.
Bill by the Sallan Jewelry Company and Byron Woodward against George L. Bird and another to enjoin the destruction of an easement. From a decree for plaintiffs, defendants appeal. Affirmed.
Groesbeck, Sempliner, Kelly Baillie, for plaintiff Sallan Jewelry Co.
Andrew L. Moore ( Edmund E. Shepherd, of counsel), for plaintiff Woodward.
Patterson Patterson and Pelton McGee, for defendants.
Plaintiff Woodward owns a store building in the city of Pontiac. His tenant is plaintiff Sallan Jewelry Company. Defendants own an adjoining store. Each owns half of the dividing party wall. A stairway leading to the second story was constructed many years ago by the side of the party wall, but wholly on defendants' premises. At the second story, openings and doorways were constructed in the party wall leading to plaintiff's second story, and plaintiff Woodward claims that he and his predecessors in title have used the stairway and helped to keep it in repair since the year 1867. Recently defendants started to remodel their building by removing the stairway, thereby depriving plaintiff of access to his second story, and plaintiff obtained a temporary injunction to restrain them from so doing, claiming he had a prescriptive easement in the use of the stairway. He prays that the stairway may be restored and the temporary injunction made permanent.
There was proof to support plaintiff's claim that he and his predecessors in title had used the stairway, and that they claimed the right to use it. There was also proof that plaintiff and his predecessors had helped to maintain it through the years, although this was disputed. These claims do not seem to be seriously disputed, but defendants, to overcome the force of them, assert that plaintiff's use began in favor and has been a permissive use through the years. There is no evidence of this except the testimony of the witness Henry L. Jacobs, whose father was the former owner of defendants' property. He and his brother, upon the death of the father, succeeded to the title and sold the premises to defendants on contract, which is at the present time executory. Henry testified that in a talk with his father in 1885 they were discussing the advisability of making some changes in the building which involved the removal of the stairs, and his father said "we could do that because there was no easement on that, they were using it by sufferance." The court heard this testimony, but at the close he excluded it, on the ground that it was a self-serving statement. That the court was in error in excluding the evidence is not seriously argued by defendants' counsel. It was a self-serving statement, and the chancellor was right in excluding it. Wilson v. Wilson, 6 Mich. 9; Jones v. Tyler, 6 Mich. 364; Ward v. Ward, 37 Mich. 253; 22 C. J. p. 216.
Counsel for plaintiffs insist that the testimony was objectionable on the ground stated by the court, but they say whether it was or not is not important, as the estate of Mr. Jacobs passed by will to the boys, and this ipso facto revoked the permission, and since that time there has elapsed more than 15 years, a sufficient time to ripen the right into an easement by prescription. Counsel for defendants do not agree with this, and do not think that that rule should apply. We are inclined to the opinion that it is applicable, and that a case of prescriptive easement was made out. This court has held in several cases that a change in the title destroys the permission. Maxwell v. Bay City Bridge Co., 41 Mich. 453; Minneapolis, etc., R. Co. v. Marble, 112 Mich. 4; Howatt v. Green, 139 Mich. 289; Toney v. Knapp, 142 Mich. 652; Voorhies v. Pratt, 200 Mich. 91; First National Bank v. Vanden Brooks, 204 Mich. 164.
The recent case of Burkhart v. Zimmerman, 239 Mich. 491, is decisive of the question. That was a case where the stairs were located wholly on the premises of the opposite party, and is on all fours with the present case. Mr. Justice SNOW reviewed the case and held that an easement which began in favor was terminated by a change in the title.
Some question is raised by counsel as to the wording of the decree made in the trial court. This question will not be considered in the opinion, but counsel may have permission to raise it upon the settlement of the decree in this court.
The decree will be affirmed, with costs to the plaintiffs.
SHARPE, C.J., and SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred.