12 P.2d 273 | Mont. | 1932
Insufficiency of Complaint: The allegations of paragraphs 5-7 of the complaint [see opinion], show conclusively that the use of the doorway and stairway made by the plaintiffs and their predecessors was, in its inception, permissive and not adverse. According to these allegations, the door was inserted in the party-wall by the then owners of the latter, and the then owners of the party-wall were predecessors in interest of the respective parties hereto. When the door was inserted it was intended, not only by the plaintiffs' predecessors but also by the defendant's predecessors, that the same should afford the plaintiffs' predecessors and their tenants free passage in going from the plaintiffs' building to the defendant's building, and from the defendant's building to the plaintiffs' building, on any occasion.
The courts universally recognize and apply the rule that, "where a right as to land by prescription is claimed, the period required for the prescription to mature does not begin to run until some fact exists giving the party against whom the prescriptive right is set up a cause of action." (19 C.J. 875.) Where, as here, the use was permissive, in its inception, the law presumes the use continued permissive until facts are shown disclosing a distinct and positive assertion of a right to the use, hostile to the owner and brought home to him. (Omodt v.Chicago, M. St. P. Ry. Co.,
The cases relied upon to support the trial court's theory that when Stringham died, or Gardiner conveyed to Crow, or Crow conveyed to the Dillon National Bank, the permission to use the door and stairway was revoked, and that the use of the same thereafter by the plaintiffs' predecessors immediately became adverse, are the Michigan cases, First Nat. Bank v. Brooks,
A diligent search failed to disclose that this court has ever passed upon the proposition. We assume, therefore, that the question is a novel one in this state, and believe that the less harsh and more equitable rule laid down in jurisdictions other than Michigan will both appeal to and find favor with this court. In 37 C.J. 298, subject "Licenses," the author says: "A permissive license to use land may be continued by implication, notwithstanding a change of ownership, where the new owner makes no objection to the use." (See, also, 19 C.J. 889; Brandon v.Umpqua Lumber etc. Co.,
The Doctrine of "Tacking" is not Applicable: The evidence discloses that the plaintiffs owned their premises and used the door and stairway in question during their ownership for a period of about two years, to-wit, from 1926 to 1929, approximately seven years short of the statutory period necessary to the acquisition of title to the easement claimed by adverse user. To make out the full ten-year statutory period, the plaintiffs necessarily sought to tack to their use of the door and stairway the uses made thereof by their predecessors in interest. The greatest interest any one of plaintiffs' predecessors acquired in the door or stairway, by his individual use thereof, was an inchoate right to the use, which, in no instance, had ripened into an easement at the time any of plaintiffs' predecessors conveyed to his successor. And, as not one of the plaintiffs' predecessors mentioned or attempted to convey his inchoate right to the use of the door and stairway, the inchoate right in each instance failed to pass, because, not having ripened into an easement and become legally appurtenant to the plaintiffs' premises, the same could pass with a *232
conveyance of the latter only in the event specific words were used disclosing the intention of the grantor to convey the same. (19 C.J. 894.) Under such circumstances tacking is not permissible. (Durkee v. Jones,
The evidence does not justify the trial court's findings and conclusions or the decree entered thereon, on any theory. To use the language of the supreme court of California in the case ofBrandon v. Umpqua Lumber Co., supra: "Without detailing further, it may be said that there is an entire absence of those significant circumstances of hostile assertion usually found where adverse possession is claimed." This is a case to which the doctrine of a lost grant applies with peculiar force. The consideration for the grant of an easement is accounted for; and the adverse user is ample to support that doctrine. In view of the user here shown, it is unimportant whether the grant was oral or written.
Although appellant contends that the use was initiated under a revocable license, it neither pleaded nor offered any evidence to support the contention. It seems clear that where hostile and visible user is maintained for the statutory period, the contention of a parol license is an affirmative defense. To the proposition that the burden of showing a revocable license is upon the defendant, see 19 C.J. 960; Glantz v. Gabel,
Appellant denies knowledge of adverse user; but the owner of the servient estate may not close his eyes to the activities which are apparent to all. (Ferguson v. Standley, supra;McDougal v. Lame,
Moreover, where the "grant, agreement, or contract purports to give a perpetual or unlimited right, and the grantee proceeds to enjoy the easement with that understanding, as a matter of unqualified right, such enjoyment is adverse." (19 C.J. 890.) If we assume, then, that the first use was "permissive" it was, for all that appears, an unlimited right. (Berkey Gay F. Co. v.Valley City M. Co.,
Assuming that the use originated in license, the result is the same. Stringham died prior to July 8, 1892; and Gardner conveyed the servient estate March 2, 1889. Either such death or transfer alone is sufficient to revoke a license. (17 R.C.L. 586; DeHaro v. United States, 5 Wall. 599,
Again, assuming that the user was initiated by license, the hostile use after revocation results in an easement the same as if a license had never existed. (Eckerson v. Crippen, supra;Burkhart v. Zimmerman,
Doctrine of "Tacking": The same rule, which applies to the acquisition of a fee by prescription applies also to easements. (19 C.J. 894.) In note 59 (a) the reason for the rule is thus stated: "There is no reason for making any difference in this respect between titles to land and titles to easements. If the title has its basis in a presumed grant, privity of user tends as strongly to prove such grant, as privity of seisin. Or, if the title has its basis, in considerations of public policy, for the quieting of titles, that policy applies as well to the adverse user of easements for twenty years, as to the adverse possession of land." (See, also, Montecito Valley Water Co. v. City ofSanta Barbara,
Interruptions: An interruption will not occur without an intent on the part of the servient owner to terminate the user, nor by temporary or accidental suspension of the user. (19 C.J. 883.) This rule is universal. (Cavanaugh v. Wohley,
After an easement has attached, it cannot be defeated by interruption short of statutory period, or by a definite showing of abandonment. (19 C.J. 885, 894, 956; 9 R.C.L. 775; Smith v.Worn,
In their amended complaint, the plaintiffs allege the ownership by plaintiffs and defendant, respectively, of two tracts of land fronting on Bannack Street in Dillon; that upon these adjoining tracts of land a two-story brick building was constructed in 1889 by the owners of the respective tracts, and that upon the property line dividing the same there was erected *236 a party-wall by which the buildings are separated, and that the plaintiffs and defendant and their successors in interest have at all times since the construction thereof owned the party-wall. "5. That at the time said wall was constructed the then owners inserted therein a door at the second story of the building by which free passage was intended to be and was afforded to the respective owners, their tenants and all persons having occasion to pass from one of the buildings to the other; and also afforded a convenient passage from the second story of plaintiffs' said premises to Bannack street by means of the stairway hereinafter mentioned. 6. That within the defendant's premises above mentioned at the westerly side thereof and adjoining said party wall there was then constructed a stairway which has its base and entrance at Bannack street on the first floor, and extends therefrom to the second floor, terminating at the door described in paragraph 5 hereof. 7. That at all times since said buildings and stairway were constructed, and until the commission of the acts of which plaintiffs hereinafter complain, the plaintiffs and their predecessors in interest, their tenants and all persons having occasion to enter the upper story of plaintiffs' said building, used said door and stairway continuously, openly, notoriously, exclusively, peaceably and adversely to the defendant and its predecessors in interest under a claim of right; and that such use and right are valuable to plaintiffs and constitute an easement upon the premises of the defendant above described, and which easement is appurtenant to the plaintiffs' said premises."
It is then alleged that in the month of August, 1929, the defendant, without the assent of plaintiffs, closed and locked the only door by which the use of the stairway by the plaintiffs could be enjoyed, and likewise closed up the door in the party-wall leading from the upper story of plaintiffs' premises to the stairway, and all of the obstructions are still maintained by the defendant.
Plaintiffs prayed that plaintiffs be decreed to have an easement "through and upon" the stairway for the purpose of passage by plaintiffs and their tenants directly from Bannack *237 Street to the second story of plaintiffs' premises; and that the title to the easement be established and forever quieted in the plaintiffs, and that defendant and all persons in privity with it be enjoined from in any way interfering with their use of the stairway.
By answer the defendant admitted its ownership of the tract of land alleged to be owned by it in the complaint, denied the right of the plaintiffs to use the stairway, and, in substance, asserted that it and its predecessors in interest had purchased the premises from the original owner who erected the building, without any knowledge that the plaintiffs or their predecessors in interest claimed an easement in the stairway or the right to use the same, and set forth that all of the conveyances purported to convey an absolute title to the premises claimed by defendant, and that the alleged right of plaintiffs was extinguished and lost by nonuser with intent to abandon the same for a period of more than ten years prior to April 1, 1928. The plaintiffs denied the affirmative allegations of the answer.
The case came on for trial before the court sitting without a jury.
To clarify the discussion, the two men who erected the[1] building, or buildings, were Stringham, plaintiffs' predecessor in interest, and Gardner, defendant's predecessor in interest. At the outset of the trial, counsel for defendant challenged the sufficiency of the complaint upon the assumption that paragraphs 5, 6 and 7 show that the use of the doorway and stairway by Stringham was, in its inception, permissive — in effect a revocable license. We do not see our way clear to take that view. There is no evidence to sustain it. We are unable to draw an inference to that effect. Reading the three paragraphs together it is more reasonable to infer that Stringham, as a consideration for constructing the party-wall, was to receive as of right free passage from his building by way of the stairway to Bannack Street. Otherwise, why should he have erected the party-wall, of which Gardner was to have an equal share, on the dividing line, and why should Gardner *238 have built a stairway alongside the party-wall within his own premises terminating on the second floor at a doorway which the two cut through the wall?
The evidence tends to sustain the inference we draw. It shows that Stringham erected the party-wall at his own expense. It shows, not only that the doorway gave each of the owners access to the other's building, but also that it gave Stringham the only way to his upper story from Bannack Street. For approximately forty years Stringham and his successors in interest used the doorway in the party-wall and the stairway as a means of egress from Stringham's premises to Bannack Street, and of ingress to the premises from Bannack Street.
At some time between the completion of the buildings and June, 1892, Stringham died. His lots and the building thereon passed by administrator's deed to his widow. She, on March 6, 1895, conveyed the same to one Hammer, who, his wife joining in the deed, on September 27, 1897, conveyed the same to Gooch and Coon; Gooch, as tenant in common with Coon and as sole owner, owned and possessed the same until February 28, 1910, when he sold to one Potter. There were subsequent transfers, but this phase of the case may be summed up by saying that by mesne conveyances the title and possession of the premises finally rested in the plaintiffs.
Gardner and his wife on March 2, 1889, conveyed their property by warranty deed, without mentioning the door or stairway, to one Crow, who together with his wife on November 15, 1890, by warranty deed conveyed the same to the Dillon National Bank of Dillon. In this deed the grantors covenanted as follows: "And that the same are now free, clear, discharged and unincumbered of and from all former and other grants and uses, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature or kind soever." The defendant through mesne conveyances became the owner of the Gardner property on July 12, 1929, and has owned and possessed the same ever since. Nothing is said in any of the deeds introduced by plaintiffs, or by defendant, respecting the party-wall, or the door therein, or the stairway. Apparently *239 the upper floors of the respective buildings always were occupied continuously by their respective owners, personally or through tenants. Plaintiffs' predecessors were not interfered with until the situation arose which brought on this lawsuit, except in two instances, neither of which is of consequence.
The court, taking the view that Stringham's use of the stairway was permissive, found three occurrences, either of which would have revoked the permissive use, the last being in November, 1890: One was Gardner's conveyance of the property by a warranty deed which did not except therefrom the use of the stairway; another was the conveyance by Crow above referred to; and the other was Stringham's death. (17 R.C.L. 586, note 19;DeHaro v. United States, 5 Wall. 599,
In our view the logical inference is that Stringham began his[2] use under a claim of right. In the absence of any evidence on the subject, the presumption under the circumstances shown here would be that Stringham held under a claim of right and not by license of Gardner, and the same is true as to the successors in interest of each. In order to overcome that presumption, thereby saving its title from *240
the encumbrance of an easement, the burden is on the defendant to show that the use was permissive. (See Stetson v. Youngquist,
"`Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all' (sec. 6818, Rev. Codes 1921; Rude v. Marshall,
"Peaceable," as used in the court's finding, means continuous and uninterrupted. (Bancroft's Code Pleading, sec. 805;Montecito Valley Water Co. v. Santa Barbara,
No matter how the easement was acquired, mere nonuser for a[4] less time than that required by the statute of limitations for the perfection of the easement raises no presumption of abandonment. (19 C.J. 944.) *241
After the right to use the doorway and the stairway, including[5] as an incident the right to pass through the door at the street, became an appurtenance to plaintiffs' premises, the right of plaintiffs or their predecessors in interest thereto could only be divested by deed, prescription or by abandonment, and there is no proof of either. As to abandonment, see Skelton v.Schenetzky,
In general, the elements essential to adverse possession sufficient to extinguish an easement are very similar to those involved in the acquisition of an easement by prescription.
In this state, section 6818, supra, applies to easements as[6] well as to fee (State v. Auchard,
Counsel for defendant argue that the doctrine of "tacking" is[7] not applicable here for the reason that no mention of the right to use the stairway is made in the various deeds. But the rule is that tacking of prescriptive periods is permissible when there is a privity between the successive users of the easement. The doctrine seems to be that there is a sufficient privity as to the inchoate easement if the enjoyment is continuous and under the same claim of title. (Washburn on Easements and Servitudes, 159; 1 Thompson on Real Property, 519; 2 Tiffany on Real Property, 2d ed., p. 2067; Leonard v. Leonard, 7 Allen (Mass.), 277; Coventon v. Seufert,
Counsel further argue that, if plaintiff and their[8] predecessors in interest ever used the stairway under a claim of right and adversely to the defendant or its predecessors in interest, such user was not communicated to anybody. But in view of the court's findings, amply supported by the evidence, we think no communication by word of mouth was necessary. We fail to see any merit in this argument. (See Rude v. Marshall, supra;Pioneer Min. Co. v. Bannack Gold Min. Co.,
The excellent brief of defendant's counsel is grounded upon the theory that the use of the stairway by plaintiffs and their predecessors in interest was permissive, and they cite many well-considered authorities which they argue rule this case. But we think the authorities cited are not applicable to the conditions here. In practically every case they cite on the point they seek to make, there was testimony directly showing that the user was permissive. Even so, where it is shown that the permission has been revoked and the facts disclose that after the revocation an easement has been acquired by adverse possession, as the court found here, the authorities are ample to sustain the court's judgment. Where the user begins under a claim of right, the theory to which we incline, the authorities leave no doubt as to the correctness of the court's conclusion.
The judgment is affirmed.
ASSOCIATE JUSTICES GALEN, FORD, ANGSTMAN and MATTHEWS concur.
