Miller v. Hoeschler, 126 Wis. 263

Miller v. Hoeschler

126 Wis. 263 | Wis. | 1905

Dodge, J.

The error assigned is the refusal to award to-plaintiff an easement over and upon the strip lying between-his premises and the street for use “as a dooryard.” Doubtless, had plaintiff’s grantor owned both the strip and the house and lot, there might have arisen, from the mere exhibition of' the premises, an inference of such mutual mistake or fraud as would have aroused an equity in plaintiff’s favor. Obviously, however, that grantor could not convey what he did' not own, and appellant’s claim to an easement must rest on the existence of one in his grantor appui’tenant to the premises-conveyed. If the grantor, Frank Leinfelder, had any such-easement, it must have arisen by implication upon the devise to him from Joseph Leinfelder of lots 8 and 9, No easement: *267existed in Joseph, appurtenant to the premises on which he located the house, for he owned the whole, and his use of any part is referable to his right as owner. Mabie v. Matteson, 17 Wis. 1, 10; Randall v. Sanderson, 111 Mass. 114; Buss v. Dyer, 125 Mass. 287. Did he create one by that devise ?

The scope of the doctrine of implication of an easement over one portion of a grantor’s lands in favor of the other portion, either granted or reserved, upon sale of either portion, is in much confusion in the United States. The rule in England, as quoted and adopted in perhaps the most cited of the earlier American cases, Lampman v. Milks, 21 N. Y. 505, 507, is in effect as follows:

“Where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. . . . The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.”

This rule, which, by the way, is said to be entirely reciprocal and to apply equally to the granted and the reserved portion, is very broad in terms, and in England has heen given application accordingly, so as to. support easements over adjoining premises for light and air and for lateral support of buildings, so as to preclude the owner of the seryient estate from building or excavating thereon. In the states where the rule has been adopted in terms, its application has been quite limited, and in some of them an early tendency to liberality has been followed by a later strictness of limitation. See Griffiths v. Morrison, 106 N. Y. 165, 12 N. E. 580; Whyte v. Builders’ League, 164 N. Y. 429, 58 N. E. 517; Keats v. Hugo, 115 Mass. 204; Buss v. Dyer, 125 Mass. 287. The following are illustrative cases of application of the rule above stated: Dixon v. Schermeier, 110 Cal. 582, 42 Pac. 1091; *268Fremont, E. & M. V. R. Co. v. Gayton, 67 Neb. 263, 93 N. W. 163; Janes v. Jenkins, 34 Md. 1; Cihak v. Klekr, 117 Ill. 643, 7 N. E. 111; Dunklee v. Wilton R. Co. 24 N. H. 489; Henry v. Koch, 80 Ky. 391; Cannon v. Boyd, 73 Pa. St. 179; John Hancock Mut. L. Ins. Co. v. Patterson, 103 Ind. 582, 2 N. E. 188; Lammott v. Ewers, 106 Ind. 310, 6 N. E. 636.

It is, of course, apparent that this rule lias its reason in presumption of intended permanence, of real estate arrangement supposed to be in the minds of the grantor and the .grantee. Whatever may be true in older communities, it would be difficult to find justification for any such presumption in a new and developing country, and especially in the cities. There, instead of permanence, change is to be expected — is indeed essential to prosperity. As the city grows, large grounds appurtenant to residences must be cut up to supply more residences near to business, and it must be expected that land will be occupied by the apartment building ■covering all the ground of the owner. The cistern, the outhouse, the cesspool, and the private drain must disappear in deference to the public waterworks and sewer; the terrace and the garden, to the need for more complete occupancy. Hence there can be but slight reason to suppose that, upon the sale of that part of an entire tract on which stands a house, it is intended permanently to subject other parts of the tract to such obsolescent uses, although the owner of the whole had so devoted them. This is even more obvious in the business parts of a city, where the row of ancient barracks with their exterior appurtenances must give way to modem business blocks occupying to the full limits of the owner’s land. It is so easy, in' conveying a defined piece of land, to express either any limitations intended to be reserved over it, or to be conveyed with it ■over other land, that the necessity of raising any such grant or reservation by implication is hardly apparent. Courts of equity can afford relief where the grant is not of that under*269stood by both parties to be conveyed, or so understood by one by inducement of the other. Such rights outside the limits of one’s proper title seriously derogate from the policy of both our registry statutes and our statute against implication of covenants in conveyances. That policy is that a buyer of' land may rely on the public records as information of all the conveyances, and upon the words of the instruments for all rights thereunder. For these and other reasons we are persuaded that the English rule above quoted, if applied to the full extent of its words, would be against public policy, and would produce results contrary to the real understanding of' parties more often than the reverse.

The subject received discussion, somewhat obiter, at the pen of Ryan, C. J., in Dillman v. Hoffman, 38 Wis. 559, where many of the 'foregoing considerations are mentioned,, and doubt is suggested whether any enlargement of the doctrine of implied easement, beyond rights of way strictly necessary to' the use of the dominant estate, is at all wise. Largely on authority of that case, necessary rights of way have been, held implied in several cases. 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. With exception of that particular type, however, we find no instance where-any other easement has been held implied in this state, but, on the contrary, denial of such rights as might well have-found support, both in the words of the rule above mentioned and in the decisions from other states above cited. In Fischer v. Laack, 76 Wis. 313, 319, 45 N. W. 104, it was said that no-easement could arise save “by grant or prescription or, in the ease of a right of way, by necessity,” and a very strict meaning was adopted in considering the necessity even of a right of way, as also in Pentland v. Keep, 41 Wis. 490, 499. In Mabie v. Matteson, 17 Wis. 1, it was held that, where an owner of two mills and dams on same river sold the lower, *270there was no implied appurtenant easement to have the upper ■operated as a mere reservoir for the one sold, although the owner had always so used and operated them; this, partly on the ground that it was not necessary to the enjoyment of the lower property in the sense of “that without which the grant itself would he of no effect” (Broom, Leg. Max. 7th ed. *479) ; although it was clearly necessary to full enjoyment as the former owner had used it. In Valley P. & P. Co. v. West, 58 Wis. 599, 17 N. W. 554, an owner of an entire tract with appurtenant dam, water power, and bulkhead sold a part with fifteen feet of the bulkhead and the privilege of using so much water as might be needed. lie was held to have no reserved easement to prevent a change of the opening in said fifteen feet of bulkhead so as to allow a larger flow of water ■to the grantees. In Duncan v. Rodecker, 90 Wis. 1, 62 N. W. 533, is an obiter intimation that, upon sale of a building bounded by a party wall on the reserved premises, there would be an implied grant of easement in the land under the wall for its support. The point, however, was not decided.

We cannot avoid the conclusion that, even if in some extreme cases there must be any easement other than right of way implied from necessity, that necessity must be so clear •and absolute that without the easement the grantee cannot in any reasonable sense be said to have acquired that which is •expressly granted; such indeed as to render inconceivable that the parties could have dealt in the matter without both intending that the easement be conferred. To that effect is the tendency of our own cases and, we think, of the later decisions in both Massachusetts and New York. Such strict limitation we believe to be in accord with the popular conception upon which real estate has been and is daily being conveyed in Wis■consin and to be essential to easy and rapid development, at least of our municipalities. We deem it clear that no such' necessity appears in this case to warrant an implication that, when Joseph Leinfelder devised certain specified land to *271Erank, he also granted an easement over Ms other lands for use as a doorjard. Certainly such occupancy was not “that without which the grant itself could he of no effect.” The house had abundant ground about it for all purposes except passage to the street, and that is provided for in the judgment. Many houses serve their purpose of habitation without any outlook upon a street. We can conceive hut little benefit from the strip in any sense essential to occupation of the house and lot, except such as is involved in the so-called easement of light and air, including unobstructed vision. But that, as we have seen, is a right repudiated generally in America, except by express grant. The decision of the trial court was sufficiently favorable to appellant.

By the Gowrt. — Judgment affirmed.