76 Wis. 634 | Wis. | 1890
There does not appear to be any sufficient ground for holding, upon- the undisputed facts, that the plaintiff, Reise, as owner of lot 2, acquired a right of way over lot 4 by prescription, because he had not owned that lot twenty years when this action was commenced, and it does not appear that his grantors ever had or claimed the right to pass across lots 3 and 4 to Clinton street. Indeed, one of his grantors, Mr. Hill, distinctly testified that while his wife owned lot 2 there was no right of way across there, and that they never went through in that direction, but that the ordinary way was out from the back of lot 2; and, he adds, there was a high fence built up to Mr. Reise's store, and at the rear of the store came down to this double
It appears that Eeise was at the commencement of the action the owner of lot 2, it having been conveyed to him by Hill and wife in August, 1870. He was formerly the owner of lot 3, it having been conveyed to him in 1864 by Cook and wife, who then owned both lots 3 and 4. In this deed from Cook to Eeise of lot 3, there is granted, among other things, “ a right of way from Clinton street across the rear of said lot 4 to the rear end of lot 3, to be used in common with the owners and occupants of said lot 4 and with the said parties of the first part, and their heirs and assigns,” reserving a room in the privy, which was on the back end of lot 3, for the use of the grantors and assigns. In May, 1887, Eeise conveyed lot 3 to the grantor of the defendant Elihu Enos, by a deed which contained this clause: “ Saving and reserving to the said parties of the first part, from the operation of this conveyance, the right of way being in use in and across the rear of lot 3 for their use in common, and the use of their heirs and assigns for-: ever, with the owners and occupants of said lot 3, for use as a passage-way to the right of way in the rear of lot 4, in said plat of said subdivision of said Mill reserve running across said lot 4 to Clinton street, in said village; also giving and granting to said parties of-the second part the use of the right of way from Clinton street across the rear of lot 4 to the rear end of said lot 3, in common with the parties of the first part, their heirs and assigns forever, and the owners and occupants of said lot 4. It is intended to specially reserve hereby from the operation of this conveyance the right of way to the parties of the first part, their heirs
Now, it is on the language of these deeds that the plaintiff predicates his right, as owner of lot 2, to the right of way from that lot across lot 3, and also across the rear of lot 4 to Clinton street; and the simple question presented is, Can that right be maintained upon the language of the deeds? So far as lot 3 is concerned, there can be no doubt, as he expressly reserved that right in his conveyance to the grantor of Elihu Enos. He owned lot 3, and could reserve such right of way in his grant. There is no controversy upon that point. But, after he had conveyed away lot 3, can he still claim the right to a passage-way across lot 4? The contention of appellant’s counsel is that the right of the grantee in the deed from Cook to Seise in 1864, when lot 3 was conveyed, of a right of way from Clinton street across the rear of lot 4 to the rear end of lot 3, was a right of way appurtenant to lot 3, and that this right cannot be enlarged so that it can be used or maintained in connection with any other lot to which he subsequently acquired a title; for, he says, the easement granted was not one in gross, but was to be enjoyed by the owner of lot 3, and could not be applied to another estate. We think this position is correct and is sustained by the cases to which counsel refers.
It is very clear that the easement is not what is called in the books an “easement in gross,” that is, a personal right only, which might be assigned by the grantee to another person, but that it is an easement or right of way which is appurtenant to the land conveyed, and which will pass with that lot to another, where proper words of con
It is said that the right of way from Clinton street across the rear of lot 4 to the rear end of lot 3, contained in the deed from Cook to Reise, is granted in general terms, and does not restrict the right to lot 3, or expressly declare it
We do not see that Beise's right is affected, so far as lot 4 is concerned, by the reservation in his deed to the grantor of Elihu Enos. Of course he had the right of way through lot 3, w'hich he had conveyed; but that Avas of no practical ATalue to him unless he could use it in connection Avith the right of Avay across lot 4 to Clinton street. But, as that right of Avay was only appurtenant to lot 3, he could not use it as a right of way to and from lot 2, because to do so Avould enlarge and extend the right over the servient estate to another lot. The right of way from lot 2 across lots 3
In any view which we have been able to take of the case, we think the judgment of the circuit court must be reversed and the cause be remanded with directions to dismiss the complaint.
By the Court.— It is so ordered.