Summary
In Thornton v. McLeary, 161 Miss. 697, 702-703, 137 So. 785, 786-787 (1931), the Court held that a way of necessity had terminated when the owner of the dominant tenement acquired other abutting property which could provide access from the formerly land-locked parcel to a public road.
Summary of this case from Taylor v. HaysOpinion
No. 29503.
November 30, 1931.
1. EASEMENTS.
Where purchaser of dominant estate owned land adjoining it abutting on public road, way of necessity over servient estate ceased, since necessity therefore was terminated.
2. EASEMENTS.
Way of necessity ceases as soon as necessity to use it ceases.
APPEAL from chancery court of Prentiss county; HON. J.A. FINLEY, Chancellor.
J.S. Finch, of Booneville, for appellant.
On the sale of a tract of land surrounded in part by the lands of the vendor, and in part by the lands of strangers, the purchaser has an implied grant of a way over the exterior lands of the vendor.
Pleas v. Thomas, 75 Miss. 495, 22 So. 820; Davis et al. v. Fortinberry, 114 Miss. 294, 75 So. 119; Bonelli Brothers v. Blakemore, 66 Miss. 136, 5 So. 228, 14 Am. St. Rep. 550; 3 Kent's Com. 420; 2 Blackstone's Com. 35; Lanier v. Booth, 50 Miss. 410; Farley v. Howard, 33 Misc. Rep. 57, 68 N.Y. Supp. 159.
A way or easement by grant or implication is not divested by the after purchase of other lands over which the grantee might have ingress and egress.
Zell v. Universalist Society, 119 Pa. St. 390, 4 Am. St. Rep. 654; Mosher v. Hibbs, 24 Ohio Cir. St. Rep. 375.
If an easement is created by grant, it does not cease, although the necessity for it ceases.
Atlanta Mills v. Mason, 120 Miss. 244.
A right of way of necessity arising by implication or operation of law does not cease when the purchaser owns or buys other lands over which he may reach his lands to which the right of way is appurtenant, the easement of right of way being appurtenant to and running with the land, is a part of it, and can only be extinguished by merger of the two estates, or by other process known to the law to divest real estate.
Estep v. Hammons, 104 Ky. 144-148, 46 S.W. 715, 20 Ky. L. 448.
When it appears that the owner of the dominant estate does not have an outlet by means of a new way that is reasonably sufficient to the beneficial enjoyment of the dominant estate, the right of way or easement cannot be extinguished or destroyed.
19 C.J., p. 954, section 171-K; Hart v. Deering, 222 Mass. 407, 111 N.E. 37.
If the new way established is not a public way, the easement or right of way of necessity is not destroyed, or extinguished.
Palmer v. Palmer, 150 N.Y. 139, 55 Am. St. Rep. 653, 44 N.E. 966. W.C. Sweat, of Corinth, and C.B. Wright, of Belmont, for appellee.
When the purpose, reason and necessity for an easement ceases, within the intent for which it was granted, the easement is extinguished; hence, if an easement is not granted for all purposes, but for a particular purpose only, the right continues while the dominant tenement is used for that purpose, and ceases when specified user ceases. A way created by necessity cannot endure longer than the cause which calls it into being, and is consequently extinguished on the acquisition of another mode of passage, although far less convenient.
9 R.C.L., section 71, p. 815.
If there is any easement at all in this case, it was one of implied grant; and being one of implied grant, can not be established except by a showing of strict necessity therefor.
Bonelli v. Blakemore, 66 Miss. 136.
While a right of way of necessity continues until some other lawful way has been acquired, it ordinarily can not be extinguished so long as the necessity continues to exist. Nevertheless a way of necessity ceases as soon as the necessity to use it ceases. If the owner of a way of necessity acquires other property of his own over which he may pass, or if a public way is laid out which affords access to his premises, or if a new way is established by a judgment on partition, the right of way of necessity ceases; and the fact that a former way of necessity continues to be the most convenient way will not prevent its extinguishment when it ceases to be absolutely necessary.
19 C.J., section 171, p. 953.
This way of necessity is a new creation by operation of law and is only provisional; for it is only brought into existence from the necessity of the estate granted, and continues to exist only so long as there may be a necessity for its use.
Oliver v. Hook, 47 Maryland, 301; notes to Bussmeyer v. Jablonsky, Ann. Cas. 1913C, p. 1114.
A way of this kind is limited by the necessity which creates it. It ceases when that necessity no longer exists. If a person entitled to such way purchases other lands over which he can pass to the place to which the way leads, his way of necessity ceases.
Collins v. Prentiss, 38 Am. Dec. p. 63; Allen v. Carleton, 29 Tex. 74[ 29 Tex. 74], 94 Am. Dec. 260.
Appellant, by a bill in equity, sought to establish his right to a way of necessity over and across the lands of appellee. The appellee, by his answer, denied that this right had ever existed; but asserted that, had such right ever existed at the time appellant purchased this land, he owned other land adjoining same, which abutted on the public road, and which was accessible to, and used by him in reaching the public road; and as a matter of law, when appellant had his own right of way, appellee's land no longer owed servitude as a servient estate. In other words, that the way of necessity, if existing prior to appellant's purchase, ceased when the necessity therefor ended. The court below held that appellant was not entitled to a way of necessity over appellee's tract of land, and dismissed the bill.
On the facts, the court was warranted in finding that a way of necessity had existed prior to the date of the purchase of both tracts of land by Wright, the fifty-eight-acre tract of land being surrounded by other lands, with no way of egress and ingress save over the eighty-acre tract which had been used by predecessors in title as a way to reach the public road, and thence the market.
Appellee's eighty-acre tract lay north of appellant's fifty-eight acres. At the time appellant purchased this land he owned a twenty-acre strip which adjoined same on the east, and abutted the public road, giving access thereto, which way to the public road had been in use many years. While owning this fifty-eight-acre tract, appellant sold the twenty-acre strip to another.
We construe the briefs of counsel to submit to us for decision the contention that a way of necessity, once established in favor of the owner of a dominant estate over the lands of a servient estate, runs with the land, and is never extinguished.
In this case, the way arises through grant by implication; there being no claim of express grant.
In the case of Bonelli v. Blakemore, 66 Miss. 136, 5 So. 228, 14 Am. St. Rep. 550, this court held that, if there was any easement at all, it was one of implied grant; and, being one of implied grant, cannot be established except by a showing of strict necessity.
Of course, it is well settled in this jurisdiction that on the sale of a tract of land surrounded in part by the lands of the vendor, and the rest by the lands of a stranger, the purchaser of the interior lands has an implied grant of a way of necessity over and across the lands of his vendor. Pleas v. Thomas, 75 Miss. 495, 22 So. 820; Davis v. Fortenberry, 114 Miss. 294, 75 So. 119; Bonelli v. Blakemore, supra.
This court has never held, however, that this right of way of necessity, arising by implied grant, vested title in fee to the lands, but only a right appurtenant to the dominant estate.
Reviewing the cases cited by appellant in support of his contention, we find the case of Zell v. Universalist Society, 119 Pa. 390, 13 A. 447, 4 Am. St. Rep. 654, in which the easement was an alley; and the court there held explicitly that no express grant conferred the right to use the alley, nor was the alley a way of necessity. This case is not controlling as to the case at bar. Mosher v. Hibbs, 24 Ohio Cir. Ct. R. 375, does not appear to be in point.
In the case of Atlanta Mills v. Mason, 120 Mass. 244, there was an express grant of right to specific uses, or reservation thereto, of water in a stream by millowners, and the court held that such grant never ceased, although not arising by necessity.
The only case in point cited by counsel is Estep v. Hammons, 104 Ky. 144, 46 S.W. 715, 716; 19 C.J., p. 935, section 171, note, in which the court said: "We are also of opinion, from the evidence, that, in the sale by appellee to appellant of the lot in question, there was an agreement on the part of appellee that a right of way over appellee's remaining land should pass to appellant with the lot for the use of appellant and his family." However, the court further held that a right of way of necessity arose through a grant by implication, and said only this: "Nor do we think this right of way that passes as appurtenant to the land would be lost or affected if the purchaser should purchase him an outlet over the lands of others. The right of way easement, being appurtenant to and running with the land, is a part of it, and can only be extinguished by merger of the two estates or by other process known to the law to divest real estate."
In the case at bar Wright, in 1923, became the owner of both estates, and, when he sold to the appellant the fifty-eight-acre tract, the latter then owned lands adjoining this tract which abutted the public road, and over which he had an easement from the fifty-eight-acre tract to the public road.
Under this state of facts, if we concede that the evidence shows that prior to Wright's purchase there was a way of necessity over the eighty-acre tract in favor of the other, the necessity therefor was terminated then and there, and his right thereto ceased. In this view, we are sustained by the great weight of authority, as well as by sound and cogent reason.
We find the rule thus stated in 19 C.J., p. 953, section 171: "While a right of way of necessity continues until some other lawful way has been acquired and ordinarily cannot be extinguished so long as the necessity continues to exist, nevertheless a way of necessity ceases as soon as the necessity to use it ceases. If the owner of a way of necessity acquires other property over which he may pass, or if a public way is laid out which affords access to his premises, or if a new way is established by a judgment in partition, the right to a way of necessity ceases. . . ."
An examination of the notes to the text above demonstrates that the rule stated is consistent with the weight of authority in this country and in England.
The case of Pierce v. Selleck, 18 Conn. 321, is strikingly interesting as applied to the facts of the case at bar. That court said: "It is a fallacy to suppose that a right of way of necessity is a permanent right, and the way a permanent way, attached to the land itself, whatever may be its relative condition, and which may be conveyed by deed, irrespective of the continuing necessity of the grantee. . . . It is a principle true from the very nature of the case, and as such is recognized by all the authorities, that a way of necessity, whether it originates in the necessity of the party claiming it, or from the operation of deeds furnishing evidence of the intent of parties, where a necessity exists, is limited by the necessity which creates it, and is suspended or destroyed, whenever such necessity ceases."
Supporting this statement of the law, see, also, Cassin v. Cole, 153 Cal. 677, 96 P. 277; Palmer v. Palmer, 150 N.Y. 139, 44 N.E. 966, 55 Am. St. Rep. 653; Oliver v. Hook, 47 Md. 301.
Affirmed.