204 Wis. 286 | Wis. | 1931
The following opinion was filed February 10, 1931: •
This action is brought by the plaintiffs to restrain the defendants from trespassing upon their premises and breaking down and destroying gates maintained thereon. The defendants admit their conduct vi et armis, but justify on the ground that the locus in quo. was a way of necessity, to the use of which they were entitled, and that their conduct was no more than necessary to enable them to enjoy their lawful rights. The facts giving rise to the claimed way of necessity are as follows: On December 7, 1885.,.one Christian Mayer was the owner of the east half of .the southwest quarter of a certain section of land. On that day he sold the north twenty-five.-acres thereof to one Michael
The condition arising from the severance of the twenty-five' acres on the north of the eighty gave rise to the typical situation from which ways of necessity are implied over that portion of the premises retained by the grantor. Dillman v. Hoffman, 38 Wis. 559; Jarstadt v. Smith, 51 Wis. 96, 8 N. W. 29; Galloway v. Bonesteel, 65 Wis. 79, 26 N. W. 262; Johnson v. Borson, 77 Wis. 593, 46 N. W. 815; Benedict v. Barling, 79 Wis. 551, 48 N. W. 670; Miller v. Hoeschler, 126 Wis. 263, 105 N. W. 790. It is a general rule that a way of necessity is not merely one of convenience, and it never exists where one may reach the highway over his own land, even though it may be difficult and expensive to accomplish it. There is some difference in the authorities concerning the extent of the obstacles to be encountered in making a way on one’s own land that will give rise to a way of necessity over the lands of one’s grantor (see note in 5 A. L. R. 1557), some claiming that no amount of physical difficulty in reaching the highway over one’s own land will give rise to the way, while others state the test to be whether the easement is one for which a substitute cannot be furnished by reasonable labor and expense. 9 Ruling Case Law, p. 764.
• Stressing the point that implied covenants have been abolished by statute in this state, and that implied easements are not favored (Depner v. United States Nat. Bank, 202 Wis. 405, 232 N. W. 851), it is contended by appellants that a.way of necessity should not.be recognized in this case because defendants now and at all times did have it in their
In 1895 Christian Mayer conveyed the south fifty-five acres, or the servient estate, to Albert Hanke, who in 1899 conveyed it to the father of the plaintiffs, from whom they inherited it. The question is whether under our recording statutes Albert Hanke took title to the servient estate burdened with the easement of this right of way. Under our recording statutes it is necessarily held that a bona fide purchaser of land without knowledge or actual or constructive notice of the existence of an easement takes title to the same
The weight of authority is to the effect that if a deed or a contract for the conveyance of one parcel of land, with a covenant or easement affecting another parcel of land owned by the same grantor, is duly recorded, the record is constructive notice to a subsequent purchaser of the latter parcel. See note to Hancock v. Gumm, 16 A. L. R. 1013. That this doctrine, however, is not universal appears by a further consideration of the same note. Our reference here is not made for the purpose of indorsing either the minority or the majority rule or expressing any opinion with reference thereto. In this case the easement was not created by express covenant in the grant of the north twenty-five acres, and an examination of the record of that deed by Hanke when he purchased the servient estate would not have advised him of the existence of this way. While it has been held that where an examination of the record title of the grantor of the property across which plaintiff claimed a right of way of necessity would have disclosed his former ownership of the property for which such way was claimed, and the grantee, before purchasing, had a survey made which showed that complainant’s property was an isolated lot with no highway as a means of access to it, the visible conditions thus actually ascertained, in connection with the information disclosed by the record, were operative to charge the grantee with notice of complainant’s rights (Higbee Fishing Club v. Atlantic City Electric Co. 78 N. J. Eq. 434, 79 Atl. 326), yet it does not appear in this case that Hanke made the • investigation
The conclusion seems to be inevitable that the way of necessity with which the servient estate was undoubtedly burdened during the time it was owned by Christian Mayer was extinguished when Christian Mayer conveyed to Hanke in 1895. The finding of the court that a way of necessity over plaintiffs’ premises exists at the present time for the benefit of the defendants was erroneous, and the judgment entered in favor of the defendants upon such finding must be reversed.
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.
On motion for a rehearing there was a brief by Helmuth F. Arps of Chilton for the respondents, and by Fox & Fox of Chilton for the appellants.
The motion was denied, with $25 costs, on April 7, 1931.