96 P. 263 | Utah | 1908
(after stating the facts as above).
The evidence clearly shows and the trial court, in effect, found, that the cement sidewalk was intended by Ehlert as an easement, to be used in connection with the use and occupation of the lots purchased by appellants. And we think it may be fairly said, from the evidence introduced in behalf of defendants, that the walk was reasonably necessary to the use and convenient enjoyment of the property purchased by the plaintiffs. It appears, however, that the court decided against appellants, and dismissed their cpmpl'aint upon the following grounds: (1) That neither of the respondents, at tire time they purchased their ground from Ehlert, had notice of the easement claimed by appellants; and (2) that the easement did not pass as an appurtenant to the lots purchased by appellants. The record conclusively shows that the cement walk was visible and plain to be seen by any one entering the avenue. And the purpose for which it was intended, and for which it was being used both before and at the time respondents purchased their lots from Eh-lert, is too plain to admit of serious discussion. In fact the court found “that said walk, after the same was fully constructed, was visible and continuous, except for twelve feet at the east end of the defendants’ land.” And, furtherfore, respondent D. A. Nelson, as hereinbefore stated visited, the avenue and examined the property which he afterwards purchased for his mother, Mary P. Nelson. True, he testified that he did not remember of seeing the cement walk at all, but he admitted that he “went up through the court” (referring to the avenue) and “probably saw the cement walk, ” and that “it must have been there. ” The walk being obvious and permanent, he and his mother are deemed to have had notice of its existence, and the purpose for which it was being used; for it is settled law that in cases of this kind means
The most important question, however, in this case is, did the easement in and to the cement walk pass as an appurtenance to tbe lots purchased by appellants? This question must be answered in the affirmative; for it is a well-recognized rule of law that, on a severance of an estate by a sale of a part thereof, all easements of a permanent character, that have been created in favor of the land sold, and which are open and plain to be seen, and are reasonably necessary for its use and convenient enjoyment, unless expressly reserved by the grantees, pass as appurtenances to the land. (2 Jones, Real Prop. & Conv. 1640; 14 Cyc. 1184, 1185; 10 A. & E. Ency. Law, 419; Washburn, Easements & Serv., 9.) This doctrine is tersely, and, as we think, correctly stated in the case of Phillips v. Phillips, 48 Pa. 178, 86 Am. Dec. 577. In the syllabus of the opinion it is said:
“Servitudes, adopted by the owner of land, which are plainly visible or notorious, and from the character of which it may fairly be presumed that he intended their preservation as necessary to the convenient enjoyment of his property, become, when the lands are divided, and pass into other hands, permanent appurtenances thereto, and the owner of neither the dominant nor servient portions of the land has power adversely to interfere with their proper use and enjoyment.”
Likewise, iu 14 Cyc. 1190, under the headuotes, “Severance and Partition, ” it is said:
“An easement is not extinguished by a division of the estate to which it is appurtenant, but the owner or assignee of any portion of that estate may claim the right, so far as it is applicable to his part of the property, provided the right can be enjoyed, as to the respective parcels, without any additional burden upon the ser-vient estate; accordingly a right of way, which is appurtenant to an*125 estate, is appurtenant to every part of it, no matter into how many parts it may be subdivided, and it inures to the benefit of the owners of all subdivisions so situated that it can be used.”
This rule w7as recognized by tbis coart in the case of Fayter v. North, 30 Utah 156, 83 Pac. 742, 6 L. R. A. (N. S.) 410. While Mr. Justice Straup dissented from the result arrived at in the case by the majority of the court, he nevertheless approved of the general doctrine herein announced. In the course of his dissenting opinion he says, when a
“Permanent and obvious servitude is imposed on one part of an estate in favor of another, which, at the time of the serverance, is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, by voluntary alienation, there arises, by implication of law, a grant of the right to continue such use. In such ease the law implies that with the grant of the one an easement is also granted or reserved, as the case may be, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage, in substantially the same condition in which it appeared and was used when the grant was made.”
The following are a few of the many cases which support this doctrine: Currier v. Howes, 103 Cal. 431, 37 Pac. 521; Seymour v. Lewis, 13 N. J. Eq. 439, 78 Am. Dec. 108; Ellis v. Bassett, 128 Ind. 118, 27 N. E. 344, 25 Am. St. Rep. 421; Janes v. Jenkins, 31 Md. 1, 6 Am. Rep. 300; Butterworth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 352; Lampman v. Milks, 21 N. Y. 505; Randall v. Silverthorn, 4 Pa. 173; Overdeer v. Updegraff, 69 Pa. 110; Newell v. Sass, 142 Ill. 104, 31 N. E. 176.
Counsel for respondents have not filed a brief, neither did they argue the case orally in this court, therefore we are deprived of the benefit of their views respecting the merits of the case and the questions of law involved. We think, however, it is evident, from the findings of fact and the conclusions of law made by the court, and the judgment entered thereon that the trial court proceeded on the theory that, as the twenty-foot right of way was mentioned and described in
Eklert, by entering into the agreements mentioned, covenanted to deed the lots therein mentioned ‘ ‘with all and singular improvements, buildings and appurtenances thereto belonging or in any wise appertaining . . . together with a perpetual right of way over the following tract of land.” Then follows a description of the right of way, twenty feet in width, commencing at Third East street, and running the entire length of the avenue. It will thus be observed that there are two separate and distinct covenants contained in the agreements, one of which is to. convey the lots with all the improvements and the appurtenances thereunto belonging, and the other is to grant a perpetual right of way twenty feet in width through the avenue. Neither covenant in any sense limits or restricts the other. While it may be said that, under the facts and circumstances of this ease, an easement in the twenty-foot right of way, even if it had not been specially mentioned in the agreements, would have passed as an appurtenant to the lots, yet it does not follow, as a legal proposition, that because Eklert specifically expressed it in the contract, he thereby intended to* and did reserve to himself all other appurtenances of like character.
The judgment is reversed, and the cause rem'anded, with directions to the trial court to set aside tké findings and conclusions herein, and to make findings and conclusions in favor of plaintiffs, in accordance with the views herein expressed, and enter judgment thereon as prayed for in plaintiffs’ complaint; plaintiffs to. recover their costs.
