84 P.2d 481 | Or. | 1938
This is a suit to enjoin defendants from using an automobile driveway upon plaintiff's property. A demurrer to plaintiff's amended complaint was sustained. Plaintiff declined to plead over and from the resulting decree of dismissal plaintiff has appealed.
The property involved in this suit is in block 53 in Irvington within the corporate limits of the city of Portland. This block is bounded on the east by Northeast 17th Avenue, on the west by Northeast 16th Avenue and on the south by Northeast Knott Street. Plaintiff's property embraces a parcel in the southwest corner of said block extending easterly from the southwest corner thereof along Northeast Knott Street a distance of 70 feet; thence northerly 100 feet, thence westerly 70 feet and thence southerly to the southwest corner of said block. The property of defendants, Anna V. and C.C. Colt adjoins and lies immediately to the east of plaintiff's property, beginning at the southeast corner of plaintiff's above described parcel and running easterly 60 feet along Northeast Knott Street, thence northerly 100 feet, thence westerly 60 feet and thence southerly 100 feet to the southeast corner of plaintiff's parcel. The property of defendants, W.J. and L.H. Kerr adjoins and lies immediately to the east of the above described parcel of said defendants, Anna V. and C.C. Colt, beginning at the southeast corner of said Colt's parcel and running easterly 70 feet along Northeast Knott Street to Northeast 17th Avenue; thence northerly 100 feet along the westerly line of said Northeast 17th Avenue; thence westerly 70 feet and thence southerly *344 100 feet to the southeast corner of said Colt's parcel.
These three parcels of real property above described extend from Northeast 17th Avenue to Northeast 16th Avenue. A plat thereof appears in the opinion in the case of Dean v. Colt,
The prior grantors of the above described property constructed a concrete roadway across said property from Northeast 16th Avenue to Northeast 17th Avenue, approximately seven feet in width which was permanently laid and affixed to the soil on and across the south seven (7) feet of the north twenty (20) feet of the said entire tract, comprising the three above described parcels. Said driveway was designed by said prior grantors as a permanent, hard surfaced automobile driveway serving each and all of the said three parcels; and said property was improved as residence property by said prior grantors and each of said properties was sold by them with the understanding between said prior grantors and the purchaser that the said concrete driveway should be regarded as an entire driveway across said properties according to said resubdivision and should be a common driveway serving each and all of said properties.
In addition to the parcel first hereinabove described, plaintiff was at all times herein mentioned the owner of property adjacent to and on the north of said described parcel, the same being lot 13 and the south 40 feet of lot 14 in said block 53.
That prior to September 17, 1935, plaintiff and defendants became the respective owners in due course by mesne conveyances of the above described parcels of property respectively and on and for sometime subsequent *345 to said 17th day of September, 1935, enjoyed and were enjoying in common the right of easement to the said driveway as originally created with some slight alterations near the westerly end thereof and which said alterations were wholly on plaintiff's property and had previously been made by agreement among the persons interested, the said right of easement being a right of easement to a driveway for passenger automobiles extending, as aforesaid, from Northeast 16th Avenue to Northeast 17th Avenue, bisecting all of the said properties hereinabove described, and said driveway consisted at all times of a permanent hard surfaced driveway, the portion thereof crossing the property of the said defendants above described being approximately seven (7) feet in width and permanently laid and affixed to the soil along and across the southerly seven (7) feet of the northerly twenty (20) feet of each and both of the said property of said defendants.
The foregoing facts are derived from the amended complaint. We quote paragraphs IV, V, VI and VII of said amended complaint:
The question is whether the above facts disclose an abandonment by defendants of the right-of-way in suit, and if not, whether facts are pleaded showing a trespass on defendants' part in obstructing said right-of-way.
The purpose of this suit is to declare a forfeiture of the easement across plaintiff's property. "The courts are not inclined to favor forfeitures of easements unless the intent to abandon them plainly appears." Barton v. Jarvis,
The intention to abandon is the material question. 9 R.C.L., Easements, p. 812, § 68, note 8; 19 C.J. Ibid, p. 941, § 149, note 18; 1 Am. Jur. Abandonment, p. 6, § 6, note 17; 1 C.J.S., Ibid, p. 8, § 3a.
Paragraph VI of the amended complaint dispels the conclusion that defendants actually intend to abandon their easement over and upon plaintiff's property. *348
The case of Polyzois v. Resnick,
The case of Dillman v. Hoffman,
Several years before the suit was brought plaintiff's grantor, while seized, built a permanent partition, ever since maintained, inclosing within his own premises a great part of the common halls and passages in the upper stories upon his own estate, and removed a stairway between the second and third stories, part of the common way, from those of his own premises to those of the appellant. The Wisconsin supreme court held that this encroachment upon and change in the common way was made by plaintiff's grantors without defendant's *349 consent and that the easement was extinguished by the erection of the permanent obstruction by plaintiff's grantors and defendant's later acquiescence therein manifested by the erection by defendant of the obstruction in suit. The record does not reflect any intention on the part of plaintiff's grantors to continue the use of the easement so obstructed during the several years which elapsed after the obstruction was made by plaintiff's grantors before plaintiff acquired the title. On the contrary, the course of plaintiff's grantors is entirely inconsistent with such an intention.
Stenz v. Mahoney,
In construing this language and the other provisions of the deed, the Wisconsin court said:
"Then follows an attempt to provide for a permanent easement for a stairway to be used in common, three feet wide; one half to be on plaintiffs' land and the other on the premises now owned by the defendant. By using the word `east' instead of the word `west' in describing its location, the deed carried the easement away from the plaintiffs' land. It seems perfectly evident that the parties did not intend a perpetual easement to be created as to the stairway in use at the time the deed was made. The deed speaks of such stairway as being `on and adjoining' the property conveyed, and grants the use thereof so long `as the same shall there remain.' So long as it remained as it then existed, *350
it was to be used in common. There was no restriction as to either party's changing the conditions. There was no attempt made to create an easement to be entirely upon the property to the east. On the contrary, the intention plainly manifest is that the perpetual easement should rest equally on each tract, and apt words were used to indicate that intention, except for the mistake mentioned. The defendant admitted that to have been the purpose in the deed when she offered to permit her premises to be used for a stairway in connection with an equal strip of plaintiff's land. The plaintiffs seem not to have been satisfied with this offer. They compelled defendant to remove her building and stairway as it existed when the deed was made, entirely upon her own land, and then blocked the 1 1/2 feet on the east of their building, intended for the common stairway, by moving their building to the east line of their lot. They now insist upon a right to use the stairway entirely upon defendant's premises. We do not think this claim is sustainable under the deed mentioned. `Every privilege which one man claims in derogation of the rights of another is viewed with jealousy by the law, and it will require it to be confined to the prescribed limits and specified object of the grant.' Taylor v. Hampton, 4 McCord, 96, 17 Am. Dec. 710. Rights of the sort claimed by plaintiffs are servitudes, and may be extinguished by act of God, operation of law, or by act of the party. A servitude may be extinguished by renunciation of the party entitled to it, either express or implied. When the act which prevents the servitude is by the party to whom the servitude is due, it is wholly extinguished. Any act wholly incompatible with the nature and exercise of the servitude is sufficient to extinguish it. These principles are laid down and elaborated in the case cited, and have been recognized and enforced in this state. Dillman v. Hoffman,
Tremberger v. Owens, 80 App. Div. (N.Y.) 594 (
Steere v. Tiffany,
We quote from the opinion:
"After the layout of Summer Street diagonally across the way, the plaintiff or his predecessor in title took exclusive possession of the half in front of his lot by moving his house forward. His next neighbor did likewise. The owner of the lot on which the gangway leading from the way to Broad Street closed the gangway. These acts were all done without objection. The result is that the way as originally established has practically ceased to exist; and when the defendant, following the plaintiff's example, took possession of the small bit of the way lying between the plaintiff's lot and Summer Street, he thereby unmistakably signified his consent to its destruction. The plaintiff, in suing him, is suing for an obstruction, not of the way as created, but of a mere bit of it, which is convenient for his individual use, but which, partly in consequence of his own acts, is no longer capable of being used as originally intended. Can he maintain his action? We think not. The way, if it ever existed as a private way, so existed by implication or estoppel not by express grant. To ascertain its character, therefore, we must look to the circumstances of its creation, and doing so, we think it is manifest that the way was intended to exist as a whole, and not in halves, and that consequently to take away either half is to destroy it, and the party taking must be held to have renounced or abandoned his right in the other half. The case in this aspect is almost identical with Corning v. Gould, of which the court in Crain v. Fox, remarks, that the fence erected in the center of the way was an unequivocal act of renunciation, for the plain reason that the use of the way in common was rendered impossible by it. We do not see how it is possible for us to hold in the case at bar that the defendant is liable, without also holding implicitly that the way as originally established still exists, and that the plaintiff is liable likewise for constructing it. This result, however, the *353 plaintiff disavows, and his disavowal must be taken conclusively against him as a renunciation of the easement."
In Corning v. Gould, 16 Wend. (N.Y.) 531, also cited by plaintiff, the supreme court of New York remanded the case for retrial so that among other questions that of the encroachment of the wall erected by plaintiff could be found distinctly one way or the other by the jury, and its extent if any; and the circumstances under which the fence (also constructed by plaintiff) was erected, the intent with which that was done, provided any explanation that it was for a mere temporary purpose was given; the condition of the premises more particularly, at the time of defendant's purchase; and whether he was apprised that the way would be insisted on notwithstanding appearances.
In the case at bar, plaintiff pleads that defendants are insisting upon a continuance of the way.
In Bricault v. Cavanaugh,
McKee v. Perchment, 69 Pa. St. 342, is presented upon exceptions to the trial court's action in receiving testimony offered by plaintiff tending to show that obstruction upon and inconsistent use of the easement *354 in question were for temporary purposes only and not with any intention to abandon the easement. The other points determined in that case are not before us in the case at bar. The supreme court affirmed the district court.
In disposing of the question under consideration here, the Pennsylvania supreme court said:
"The principal defence set up on the trial was that the easement had been abandoned. It is plain that no one proprietor could do this. All the grantees of lots had an equal interest, and it required the concurrence of all. An enclosure upon any part of it would have been a disturbance of all, as it had an outlet at both ends. The defendant below and plaintiff here undertook to make out the defence by proving that it had been enclosed on each side by a fence built through the middle of it; that stables, coalhouses, privies had been erected, and trees and bushes planted on the soil over which it would otherwise have run. Now certainly, to rebut this evidence, it was entirely competent for the plaintiff below to prove by the acts and declarations of the different proprietors that the occupation and use of it in the manner stated were for temporary purposes only and not with an intention to abandon the easement."
In Ermentrout v. Stitzel, Trustee,
We find nothing in the cases cited by plaintiff holding that mere obstructions in a right of way constitute an abandonment where the party placing such obstructions there still manifests an intention to use and does continue to use the right of way for the purposes for which it was created.
In a case involving an easement for the purpose of maintaining a drainage ditch, this court has held that the fact that the water, either from a scarcity of water or seasonable drought, did not come down in such quantities as to render the use of the ditch to its usual capacity necessary, would not be construed as an abandonment unless the lack of use was continued for a period of ten years, or at least long enough to indicate an intention on the part of the owner of the dominant premises to discontinue its use permanently. Bowman v. Bradley,
We venture to quote from an early Pennsylvania case:
"The defendants have erected a building on each side of, and over their part of the alley, and the plaintiff avers that, by reason of this, the capacity of the alley has been reduced, so that he cannot have his proper enjoyment of it; and claims that, on this account, he has a right to revoke the alley privilege granted to the defendants; and complains that, though he did so, yet the defendants continue to use the alley over or appurtenant to his lot, and thus obstruct his use of it.
Admit the encroachment averred, does the right to revoke the grant follow? This is the only question that demands consideration. * * *
The question is really too plain for argument. This is not a case of mutual and dependent covenants, when one party is not bound to perform if the other fails. But it is a case of vested, executed rights, which one party claims to have forfeited, because a kindred right of his has been encroached upon, though not taken away. *356 It would not prevent, but rather foster, litigation to sanction such a principle. And there is no necessity for it; for the law gives an adequate remedy for such encroachment, by action. To allow one party to revoke the other's rights for a mere encroachment would be to hold out inducements to undertake reprisals, that must, in the nature of things, result in open war. It would be a rule incapable of definition, and therefore liable to continual abuse. Under the smallest annoyances, which must occasionally arise between tenants in common, the right of revocation would be claimed and suits would be the natural consequence. The cause was properly tried. The plaintiff's remedy is by action for the obstruction of the other part of the alley, and not by revocation of the use of the part granted to the defendants." Ebner v. Stichter, 19 Pa. St. 19, 23.
In an early South Carolina case, the supreme court of that state, in treating this question said:
"In the case of a right derived by grant or prescription, the only effect of such an interference would be to give the injured party a right to an action for his damages, or, if the nature of the interference admitted of it, a remedy by injunction. It cannot be regarded as in the nature of a partition of a common right of way, for the parties are not connected as tenants in common of a right of way, but each has a several right of way over so much of the other's land. They are connected only as it regards the consideration upon which the user is supposed to depend. To conceive that they are tenants in common of a right of way would involve the idea of one having a right of way over his own lands, which cannot be." Craven v. Rose, 3 S.C. (3 Rich.) 72.
In a Massachusetts case, it is said:
"It appears that the Union Stone Company, before 1885, erected in Front Street west of the respondent's present premises, a building and a fence closing the street. The effect was to enclose the northerly half of the street abutting on a small part of lot 4, leaving *357 unobstructed the way from that point, which was westerly of respondent's land, to Locust Street. It cannot be said as a matter of law that these acts conclusively show an intention to abandon the way over the easterly part of Front Street, especially when it appears, as the report discloses, that this corporation and its successors in title continued to use this part of the street.
We are of the opinion further that the erection of the building by Joyce, Curran and Walsh, the respondent's predecessors in title, over that part of Front Street in which they owned the fee, was not as matter of law an abandonment of their easement over the rest of the easterly part of Front Street. Abandonment is a question of intent. In some cases, where acts of the owner of the dominant estate have seemed to be entirely inconsistent with an intention to make any further use of the easement, especially where a change in circumstances has rendered the easement no longer of any benefit, such acts have been regarded as showing conclusively as matter of law an intention to abandon, and the consequent extinguishment of the easement. Corning v. Gould, 16 Wend. 531, Canny v. Andrews,
A similar rule was applied in Vinton v. Greene,
The court of appeals of the state of Kentucky reviewed a judgment for plaintiff compelling defendant to open a certain passageway over defendant's land and enjoining defendant from further closing it. The passway as originally fixed was at a certain gate. This gate, however, had been closed by plaintiff, who had *358 built a fence in front of it and attempted to change the way by leaving an opening some 200 yards further north. Defendant had closed the opening thus left, and refused to allow anyone to pass. The court of appeals held that the change made by plaintiff in closing the gate and making an opening 200 yards north of it was not an abandonment of the right to pass notwithstanding that such change could not have been made without defendant's consent.Faulkner v. Duff, 14 Ky. L. 227 (20 S.W. 227).
In a New Jersey case it was held that the construction of a fence across a street would not prove an intention to abandon a right of way thereon. White v. Tide Water Oil Co. (N.J. Eq.) 33 A. 47.
A comparatively recent Massachusetts case holds that the maintenance for 40 years of a fence across, and the construction of buildings upon a portion of, a right of way does not extinguish the easement but restricts its limits to the unobstructed portion thereof. Brooks v. West Boston Gas Co.,
Annotations upon the subject, Loss of Easement, appear in 1 A.L.R. p. 884, et seq., and 66 A.L.R. p. 1099, et seq.
For the reasons above stated, we hold that plaintiff's amended complaint expressly negatives an intention on defendants' part to abandon the right of way in suit. It also expressly pleads acquiescence by plaintiff in the course taken by defendants which negatives a claim for trespass.
For these reasons the demurrer to said amended complaint was properly sustained.
The decree of the circuit court is affirmed.
RAND, ROSSMAN and BELT, JJ., concur. *359