Pinkum v. City of Eau Claire

81 Wis. 301 | Wis. | 1892

WiNslow, J.

The deed set forth in the complaint undoubtedly granted to the city an easement over, the lands described in the deed for the purposes set forth therein. It was an easement in gross, because it does not appear to be appurtenant to any estate in the land, and it was upon condition. Whether the condition was precedent or subsequent is not necessary to be decided upon this appeal, and is not decided. The easement was also in perpetuity.

That an easement may be created in fee is well settled. Tbe fee of land may be in one person, and the fee of an easement upon such land in another. 2 Bl. Comm. ch. 7, pp. 106, 107; Story v. N. Y. El. R. Co. 90 N. Y. 122, 158; Child v. Chappell, 9 N. Y. 255; Nellis v. Munson, 108 N. Y. 453. Technically, an easement in fee must be appurtenant to land; and consequently, the easement here created, being in gross, is not strictly an easement in fee, but, being granted to the city, “ its successors and assigns,” it is capable of assignment, and is therefore undoubtedly in perpetuity, though not technically in fee. Poull v. Mockley, 33 Wis. 482. The difference is purely technical, and does not affect any substantial right in this case. Therefore, when this deed was executed and delivered, the fee of the land remained in the grantors, Mead and Bolles, subject to the conditional easement in perpetuity created by the deed. Being the owners in fee of the land, they could, of course, convey it to another; and their grantee would stand in their shoes. Why, then, cannot such grantee bring an. action against one claiming an easement on condition, to take advantage of condition broken or enforce its performance? It is said that he cannot because of the long-settled common-law principle that a condition in a deed can only be reserved to the grantor or his heirs, and not to a stranger. This rule applies to land conveyed upon condition subsequent, and the reason of the rule is that the estate is not defeated, though the condition be broken, until entiy by the grantor or his heirs, and there is nothing to assign , save a mere right of entry, which at common law is not assignable. Nicoll v. N. Y. & E. R. Co. 12 Barb. 460; S. C. 12 N. Y. 121; 1 Greenl. Cruise, tit. 13, ch. 1, § 15.

No such rule can apply here, because the reason does not exist. In this case the plaintiff does not claim as the as-signee of a mere right of action or right of entry on land, but he claims as owner in fee of land burdened with an easement granted upon condition, which condition is alleged to have been, broken. It would be a singular rule of law which would forever prevent the owner in fee of lands from questioning the right of another to maintain an easement upon his land, when there existed a violation of the express condition upon which the easement was granted. No such rule exists.

It is claimed by the appellant that the condition in the deed that the city shall build a highway is void, because it appears that the building of such highway-would involve an expense of some $8,000, and the complaint does not allege that any action was ever taken by the common council of the defendant city agreeing to the condition or promising to perform it, and the city charter containing a provision that no debt shall be created or liability incurred by the city except by a vote of a majority of the members of the council. Hence it is argued that the condition in the deed was and is void, and that the title to the easement vested in the city without performance of the condition. In reference to this and kindred objections it is sufficient to say that the complaint alleges substantially that the city made and entered into this agreement and purchased and received the deed of the property in issue upon the terms, conditions, and reservations expressed in the deed. Upon demurrer this must be construed as meaning that such steps were taken as were legally necessary to make the-conditions of the deed effectual.

It is further objected by the appellant that an action in equity will not lie, because the plaintiff has an adequate remedy at law by an action in ejectment. Neither is this objection well taken. Ejectment is not the appropriate remedy for the recovery of a mere easement. Child v. Chappell, 9 N. Y. 246; Strong v. Brooklyn, 68 N. Y. 10; Washb. Easem. (4th ed.), 740. In this connection see also Racine v. Crotsenberg, 61 Wis. 481. It is true that in Lawe v. Kaukauna, 70 Wis. 306, ejectment was maintained against a. city for property which was claimed by the city as a highway or approach to a bridge. The case shows, however, that permanent walls and abutments had been built upon the property, and that the bridge, when closed, rested partially thereon, so that it was in fact permanently occupied. Furthermore, no objection was taken in that case that the proper remedy was in equity. That question was not raised, and hence not decided. The case is not authority against the doctrine that the proper remedy here is in equity.

The claim that the complaint shows adverse possession by defendant for more than ten years is not tenable. It simply shows such possession as is necessary to the full enjoyment of the easement. Such possession is not adverse to the owner of the land. The character of the possession is determined by the character of the claim under which possession is taken and held. The claim is only of an easement.

The objection that the complaint improperly joins two causes of action — one for damages at law, and one for equitable relief — cannot prevail. It being settled that equity has jurisdiction to entertain the action for the purposes of determining the rights of the parties with regard to the easement, it will, on familiar principles, take cognizance of the controversy in all its branches,' and settle the rights of the parties by a single decree, thus saving multiplicity of suits. Turner v. Pierce, 34 Wis. 658.

It is said that the claim for money damages is barred by a provision of the charter of the defendant city which was in. force prior to passage of ch. 184, Laws of 1889, as follows:. “No action shall be maintained by any person against the city of Eau Claire upon any claim or demand until such person shall first have presented his claim or demand to the common council for allowance, and allowance thereof refused by said council.” What effect this pro vision may have upon the claim for damages is not necessary to be determined. It plainly is inapplicable to an action for equitable relief, and hence cannot serve as ground for demurrer to the entire complaint.

The revised charter of the city (ch. 184, Laws of 1889) also contains the following provisions, which are relied upon to defeat this action:

“ Sec. 22. No suit of any kind, or any claim or cause of action, either ex contractu or ex delicto, shall be brought against said city, but the claimant shall file his claim with the city clerk, for the action of the common council thereon; and, if he feels aggrieved by their determination, he may appeal to the circuit court in the manner hereinafter provided. If the council neglects to take final action within sixty days after the same is filed, the same, for the purposes of an appeal by the claimant, may be taken as disallowed. In case an appeal is taken, the city clerk shall immediately notify the city attorney, and shall make and deliver to him a copy of all papers and proceedings relating to the matter in his possession. He shall notify the common council of such appeal at its next meeting; and no appeal shall be taken, entertained or allowed from the determination of such council, unless the cause of action accrued within six months immediately prior to the time when such claimant shall have filed his said claim with the city clerk as aforesaid.

“ Sec. 23. The determination of the common council, disallowing in whole or in part any claim or causes of action of any person, or company, or corporation, shall be final and conclusive, and a perpetual bar to any action in any court founded on such claim, unless such person, persons, company, or corporation shall appeal from such action disallowing the same to the circuit court, as provided in this chapter.”

These provisions, if applicable to such an action as this, would, by their terms, absolutely bar this action immediately upon the passage of the act, because the cause of action accrued more than six months before the claim could be filed with the city clerk; hence no appeal could be taken from a disallowance by the council, and that determination would be final and conclusive. Thus the right of action is absolutely cut off at once and without giving any time to prosecute. This cannot be done, under well-established principles. Arimond v. G. B. & M. Canal Co. 31 Wis. 316.

The final objection taken is that this action is barred by the statute of limitations. R. S. sec. 4221, subd. 4. The deed was given in January, 1871. By its express provisions the city had five years in which to complete the canal and highway, so that it would seem that the cause of action did not accrue until January, 1882, which is less than ten years before the commencement of this action, and consequently the action is not barred by the statute last named, which fixes the period at ten years.

It is unnecessary to discuss the question as to what precise form of relief the plaintiff will be entitled to if he substantiates his complaint upon the trial. He may not be entitled to all that he has prayed in his complaint, nor perhaps in that form, but that he will be entitled to some remedy we cannot doubt.

By the Court.— Order affirmed.