| Conn. | Jun 15, 1897
No absolute and perpetual right of way was granted by Lorenzo Lewis in his deed of 1871. He stipulated only that “ while,” that is, so long as the south half of the back yard in the rear of the store on the granted premises might be used by him in common with the grantees, they should be “ granted and allowed ” a pass-way ten feet wide on the south side of their lot. •
It is not clear whether this contemplated user by him was a reserved right, or a mere privilege terminable at the pleasure of his grantees; nor whether it was a right or privilege personal to himself, or could be claimed to be a constituent part of an appurtenance to the land, created by the deed in favor of the grantees, and so, by virtue of the habendum clause, as enuring to the benefit of his successors and assigns. Whatever view may be taken with respect to these points, no right of way in favor of the successors of his grantees could endure after the extinction of the correlative right or privilege to the use of their land by him or his successors. The deed subjected the grantor’s land to a servitude only “ while ” he (or perhaps his successors in title) continued to use the land of the grantees. A potential use may have been sufficient, but, in fact, it was actually used by him thereafter during his life, and the defendant admitted that his land remained subject to the right of way claimed by the plaintiff, until the latter built his brick store in 1884. That was a structure of a permanent character, and necessarily excluded the owners of the Lewis property from more than two-thirds of that part of the plaintiff’s lot, the use of which was the expressed reason for any privilege on his part in respect to the pass-way. From the rest of it they were also shut off, shortly afterwards, by a tight board fence. The Superior Court was fully justified in the conclusion that the acts of the plaintiff in thus preventing the use of his land by the successors in title of Mrs. Lewis, having been acquiesced in by them, put an end to the term to which his own enjoyment
The quitclaim deed to the plaintiff’s grantor by Mrs. Lewis, by bounding his lot south on the pass-way, did not enlarge the easement previously created by her husband’s grant. Such a pass-way then existed, and was a visible landmark, which might naturally be referred to as a boundary. Young claimed a right to use it, under the deed of 1871, and there was nothing in her release to give him any additional rights in respect to it. It would rather tend to diminish them, by its necessary operation as a surrender of any privilege to which she might otherwise lay claim, as the successor of her husband, to the use of his back-yard. His subsequent warranty deed to the plaintiff, therefore, conveyed nothing which he had not obtained by his original purchase in 1871.
The eleven-foot strip bought by the plaintiff from Mrs. Lewis, in 1884, being adjacent to the rear of his store lot, was accessible from Main street by going over his other property. The fact that lie had covered most or all of his Main street front by a brick building, did not put him in a position to claim a way of necessity over her other land. He stood no better than if his front lot had been wholly vacant and unimproved.
It is contended that as the deed given by Mrs. Lewis to the defendant in 1890, bounded his land northerly on the plaintiff’s land, by a line running from Main street along the south side of Botsford’s Block for 66 feet, and thence northerly at right angles 14£ feet to other land of the plaintiff, and as the plaintiff’s land adjoining the pass-way goes but 68 feet back from Main street, she did not convey a parcel of land in the rear of Botsford’s Block, eight feet wide, between the eleven-foot strip and the pass-way, and must have thus had in mind the existence of a way of necessity over it. Whether this be so, or not, is immaterial in the case at bar. The plaintiff’s estate would not be enlarged by any such exception (if there be one) in her grant to the defendant. The land not conveyed would simply remain hers; and if
The various rulings upon evidence, to which the plaintiff excepts, were obviously correct. There was no ambiguity in the deeds under which the parties claimed, to remove which extrinsic testimony as to their practical construction could be received. No mere user for less than fifteen years, however open and continuous, could establish a right of way; and until 1884 it was not disputed that the right to use the pass-way, given by the deed of 1871, continued in full force. The user claimed would not tend to show that Mrs. Lewis was ousted of possession when she conveyed to the defendant in 1890. Whether rightful or wrongful, it constituted no objection to her conveying the fee of the soil. Nor was proof of user competent to show that the plaintiff had a way of necessity to his eleven-foot strip. A wajr of necessity is derived from the law, and depends solely on the situation and boundaries of the land to which it is claimed to be appurtenant, as these existed at the time of the conveyance.
The declarations of Mrs. Lewis did not come within the rule which permits proof of admissions of an owner of real estate to affect his successors in title. Her statement to Young, in 1883, that she was willing to convey the right to use the pass-way, notwithstanding a building might be put up covering the whole of the plaintiff’s land, was a mere oral offer to do something, which she in fact never did. That the plaintiff supposed that she had done it, or that he held a deed from Young containing covenants that she had, was nothing which could in any way affect the rights of those deriving title from her by subsequent conveyances. Nor could they be affected by evidence of what the plaintiff paid for the eleven-foot strip; or of what he -told Mrs. Lewis was his intention in making his purchases; or of the extent of
The motion to amend the complaint came so late that the court was under no obligation to grant it. Gulliver v. Fowler, 64 Conn. 556" court="Conn." date_filed="1894-07-09" href="https://app.midpage.ai/document/gulliver-v-fowler-6583312?utm_source=webapp" opinion_id="6583312">64 Conn. 556.
The exceptions to the finding as to certain matters occurring at the trial, go to points which are entirely immaterial, and it is therefore unnecessary to consider whether they are supported by the evidence certified.
There is no error.
In this opinion the other judges concurred.