Graham v. Olson
92 S.W. 728
Mo. Ct. App.
1906
Check Treatment
NORTONI, J.

(after stating the facts.) — 1. In giving judgment for the respondent, the learned trial *277judge no doubt proceeded upon the theory that the appellants’ right to the roadway was a mere parol license only and therefore revocable at the will of the licensor; (Pitzman v. Boyce, 111 Mo. 387, 19 S. W. 1104) that the action of respondent in inclosing the road after notice to appellants that he intended so to do, was a revocation of the license and that therefore the appellants were trespassers in the act of removing the fence. We cannot concur in this view of the case. The uncontradicted showing in the record before us. is to the effect that the road in question found its origin in necessity. It was, in the first instance and continued to be, a way of necessity. When the eighty acres formerly owned by the ancestor were partitioned, as no road touched the rear tracts, by agreement this way was established. Under such circumstances, the law would give the parties succeeding to the lands without outside communication, such road as a way of necessity, even though it were not expressly granted in the deed, and this would proceed upon the. theory of an implied grant. The general rule on the subject is stated by Mr. Bishop in his treatise on Non-Contract Law, sec. 872, as follows: “If one conveys to another, out of a parcel of land, a part lying neither on the highway nor on the grantee’s other land, it will be useless to the new owner unless he can have access to it; hence, by presumption of law, the deed carries with it to the grantee a right of way over the unconveyed part.” In Ballard Real Estate Statutes, sec. 371, it is thus defined: “Most common of ways implied are ways from necessity, as where one sells another land so surrounded by other land as to be inaccessible except by passing over such grantor’s land, the law implies a grant of way over such land.” To the same effect we cite Washburn on Easements (4 Ed.), 258; Goddard on Easements, 269; Anderson v. Buchanan, 8 Ind. 132; Stewart v. Hartman, 46 Ind. 331; Steel v. Grigsby, 79 Ind. 184; Logan v. Stogsdale, 123 Ind. 372. “A way of necessity can only be raised out of land granted or re*278served by the grantor, bnt not out of the land of a stranger. For if one owns land to which he has no access, except over the lands of a stranger, he has not thereby any right to go across these for the purpose of reaching his own.” [2 Washburn on Real Property (3 Ed.), 282; Stewart v. Hartmen, 46 Ind. 341.]

This well-known principle of law, because of its inherent justness, has special application in estates by partition and the way of necessity is implied in a partition between cotenants when the circumstances are such that the way of necessity would be implied in ordinary conveyances. The principle recognized is that the way of necessity lies in grant and that the deed of the grantor under the circumstances mentioned, creates a way when it is a way of necessity as much as it does when it is created by express grant. [Jones on Easements, 309; Ellis v. Bassett, 128 Ind. 118; Palmer v. Palmer, 150 N. Y. 139; Blum v. Weston, 102 Calif. 362.] Upon principle, the same rule obtains in proceedings for partition under the statute, inasmuch as there is no difference in effect between an allotment by order of the court in such proceedings and an allotment by deed from all of the other tenants in common. [Blum v. Weston, 102 Calif. 362.] It is said, however, that the right of way of necessity over lands of the grantor in favor of the grantee and those subsequently claiming under him, is not a perpetual right of way but continues only so long as the necessity exists. [Palmer v. Palmer, 150 N. Y. 139; New York Life Ins. & Trust Co., v. Milnor, 1 Barb. 353.] Be this as it may, there is a separate valuable consideration, as well as the consideration of necessity, from which, in this case, the implied grant arises and which entered into the creation of this way. In the case at bar, the parties recognized the necessities and took them into account along with other matters in the partition. The uncontradicted evidence is that the tracts fronting on the highway were regarded as more valuable and that the rear tracts were of less *279value because of their being no road thereto and for this, a valuable consideration in addition to the necessities of the case and the consideration for the deed out of which the implied grant arose, a way was provided by agreement, surveyed, staked out and fenced as a right appurtenant to the land thus, to be benefited. And although the right-of-way was not expressly granted by the deeds, it was an implied grant which rested then and now upon two sufficient principles to validate it in law as an effectual right or easement appurtenant to the lands which arose from: first, the necessities of the case; second, a separate valuable consideration passing between the parties which entered into the partition at the time. It is 'not essential in this case to' proceed upon the theory of a prescriptive right arising by virtue of a lost grant, as is usually contemplated under the old law of prescription. [Powers v. Dean, 112 Mo. App. 288, 86 S. W. 1100.] For here we have a way of necessity and the implied grant in furtherance thereof, and aside form this, an uncontrovertible grant in parol for a valuable consideration expressed by the manifest intention of the parties themselves in the laying out and fencing of the road by the grantors and the entering into possession thereof by the grantees. The easement thus created attached to those parcels of the land for which it was created as an appurtenance and passed with each successive transfer of title to the successive owner. [Blum v. Weston, 102 Calif. 362; Taylor v. Warnaky, 55 Calif. 350.] Mr. Jones in his work on Easements, sec. 260, says: “A right of way by prescription may be established in either of two ways: first, by use with knowledge on the part of the owner, whose land is used that the person using his land claims the right to use it; second, by a use so open and notorious that knowledge of a claim of right will be presumed.” We have here a constant user of this way by the parties under the claim of right to use the same during all the years from 1889. Indeed, it is true that the use was *280permissive in one sense, that is, it was permissive in the sense that the parties owning the adjacent lands did not object to it any more than they would had they actually made a deed conveying the road, for as appears from their testimony, they did not claim to own the way and therefore had no right to object to its use by those' for whose convenience it was established. Indeed, the permissive use in this case was the same as would have been if a deed to the road had been made by the grantors for they understood that they did not own the way, that the ownership thereof was vested in the parties under the agreement and that they, the grantors, had no right to object. It was not permissive in the sense of licensor and licensee. This right having been thus enjoyed by the appellants under the circumstances detailed for more than ten years, the statutory period of limitation, the prescriptive right in addition to those heretofore considered is clearly established and such right is a vested right and not a mere license. [Powers v. Dean, 112 Mo. App. 288-297, 86 S. W. 1100; Autenreith v. R. R. Co., 36 Mo. App. 254-260.] And the easement having been in the first instance based upon a valuable consideration, aside from the way of necessity and having thus ripened by prescription, it is a vested interest appurtenant to the lands and appellants were not trespassers in removing the fence erected across the same.

2. The point is made that respondent Olson, by having conveyed the one acre mentioned to Stephen Gilbert, which acre, according to description in the deed, abutted on the land line and would have included a portion of the right of way, and inasmuch as no reservation was made thereof in said deed, is thereby estopped in this case. It is only necessary to say in this connection that the uncontradicted testimony is that when the conveyance was made, the parties measured the acre . of ground from the side of the roadway and that it was understood no part of the road was sold or conveyed by that deed; that both Stephen Gilbert and Lefever, a sub*281sequent grantee of a portion of the lands, understood all about the roadway, made no claim to it, at no time fenced it or asserted ownership over it, permitted it to remain entirely in the possession and use of those for whom it was established and treated it as an existing and vested right in the appellants.

The judgment will be reversed. It is so ordered.

Bland, P. J., and Goode, J., concur.