Tucker v. Nuding

180 P. 903 | Or. | 1919

Lead Opinion

BEAN, J.

1. A preliminary question is submitted by a motion of defendant to dismiss this appeal for the reason that the notice of appeal does not describe the decree appealed from. The notice of appeal contains the name of the court, the name of the parties plaintiff and defendant, following this it is directed to the defendant and his attorney and notifies them that the plaintiff appeals “to the Supreme Court of the State of Oregon, from the decree in the above-entitled suit, rendered by the above-named court on March 23, 1918, and from the whole of said decree.” The record discloses that the decree appealed from was rendered in the suit named on the date mentioned in the notice of appeal. It does not appear from the record that there was any other judgment or decree passed by the trial court on the date named or at any other time, so that there was no possibility of the defendant’s being misled as to the decree appealed from or any chance for a mistake as to the description of the decree contained in the notice. It is submitted by defendant that neither the notice, nor the undertaking on appeal states in whose favor the decree was rendered. A notice of appeal -which gives the name of the court and of the parties to the suit, the date of the judgment or decree without any other description, and informs the respondent that the appellant appeals from the judgment or decree in the suit is sufficient: Section 550, subd. 1, L. O. L.; Ream v. Howard, 19 Or. 491 (24 Pac. 913); Fraley v. Hoban, 69 Or. 180 (133 Pac. 1190, 137 Pac. 751). In construing the section of the statute above referred to, it has been repeatedly held by this court that such notice is sufficient if it describe with reasonable certainty the decree complained of, the court in and the time at which such decree was given, the names of the parties to the suit, and the fact that one or more of them intend to appeal to the Supreme Court: Mendenhall v. Elwert, 36 Or. 375, 379 (52 Pac. 22, 59 Pac. 805), and cases there cited. Tested by the above statute and the rule enunciated by this court, the notice of appeal in this suit describes the decree complained of with reasonable certainty, and conforms to the other requirements prescribed by the decisions of this court, and is sufficient. The motion to dismiss the appeal is therefore overruled.

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Opinion on the Merits

On the Merits.

It is conceded in this case „ that the 72-acre tract originally purchased by E. H. Tucker, now owned by the plaintiff, was a portion of the 360-acre tract known as the Compton land, which was accessible by means of the county road running through the northwest corner of the land; that at the time of the conveyance by John Compton to the predecessor in interest of plaintiff of the Tucker tract, this tract was not adjacent to any public highway; that the only means of ingress and egress to and from the Tucker tract connecting with the public highway was the roadway in question.

2, 3. The universally established rule is that where a tract of land is conveyed which is separated from the highway by other lands of the grantor, or which is surrounded by his lands, or by his and those of third persons, there arises by implication in favor of the grantee a way of necessity across the premises of the grantor to the highway: 9 R. C. L., § 31, p. 768; Brown v. Kemp, 46 Or. 517 (81 Pac. 236); Collins v. Prentice, 15 Conn. 39 (38 Am. Dec. 61); Robinson v. Clapp, 65 Conn. 365 (32 Atl. 939, 29 L. R. A. 582); Doten v. Bartlett, 107 Me. 351 (78 Atl. 456, 32 L. R. A. (N. S.) 1075); Pettingill v. Porter, 8 Allen (Mass.), 1 (85 Am. Dec. 671, and note); Adams v. Marshall, 138 Mass. 228 (52 Am. Rep. 271); Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154); Moore v. White, 159 Mich. 460 (124 N. W. 62, 134 Am. St. Rep. 735). The basis of such right is the presumption of a grant arising from the circumstances of the case. The necessity does not of itself create a right of way, but it is evidence of the grantor’s intention to convey one, and raises an implication of a grant. The presumption, however, is one of fact, and whether or not the grant is to be implied, depends upon the terms of the deed and the facts in the case. The underlying principle is that whenever one conveys property, he also conveys whatever is necessary to its beneficial use, coupled with the further consideration that it is for the public good that land should be occupied. If one has an outlet over his own land, although less convenient, he cannot claim a right over the premises of another; or if there already exists a road accessible to him, though perhaps very inconvenient or in a very bad condition,.a way by necessity cannot ordinarily be implied. Ordinarily no right of way by necessity exists where the land to which such right of way is claimed borders on the sea. Although where such a way is inadequate the holding is often otherwise: 9 R. C. L., § 31, p. 768; Kingsley v. Gouldsborough Land Imp. Co., 86 Me. 279 (29 Atl. 1074, 122 Am. St. Rep. 211, 136 Am. St. Rep. 699, 25 L. R. A. 502, notes).

4. A right of way of necessity exists only where the person claiming it has no other means of passing from his estate into the public street or road. It. is so limited in respect to its. duration that although it remains appurtenant to the land in favor of which it is raised so long as the owner thereof has no other means of access, yet the moment the owner of such a way acquires by purchase of other land or. otherwise a way of access from a highway over his own land to the land to which the way belongs, the way of necessity is at an- end. In other words, a way of necessity ceases as soon as the necessity ceases: Washburn on Easements (4 ed.), pp. 258, 260. This author there states that:

“It would-be simply absurd under the common law to pretend that A could, by any form of grant, create a servitude upon the land of a stranger in fayor of land which he should convey to his grantee.”

5. Moreover, where the owner of an estate imposes on one part an apparent and obvious servitude in favor of another, and at the time oflhe severance the servitude is in use and is reasonably necessary for the fair enjoyment of the other, such servitude is described as a quasi easement and passes' with a conveyance of the dominant tenant by implied grant: German Sav. & Loan Soc. v. Gordon, 54 Or. 147 (102 Pac. 736, 26 L. R. A. (N. S.) 331); Bean v. Bean, 163 Mich. 379 (128 N. W. 413); Martin v. Murphy, 221 Ill. 632 (77 N. E. 1127); Ellis v. Bassett, 128 Ind. 118 (27 N. E. 344, 25 Am. St. Rep. 421); Goodall v. Godfrey, 53 Vt. 219 (38 Am. Rep. 671).

6. It is contended by the defendant, and as we understand was the reason of the denial of plaintiff’s claim by the trial court, that as the Tucker tract was partially surrounded by the public domain at, the time of the original conveyance from Compton to the senior Tucker, that the plaintiff could acquire a right of way over the public domain. It is not a defense to plaintiff’s complaint that he could acquire another right of way, otherwise a way of necessity would only be created over one of two parcels of land of which the grantor was the owner, when the land conveyed is wholly surrounded by what has been the grantor’s other land. This is not the rule as shown by the authorities above referred to. It is true a right of way over the public domain could be obtained by taking the necessary proceedings for the establishment of a public highway. The same might be said as to land in private ownership. The public domain is not a public highway like the sea. It may be that a public highway can be more easily established over government land than over that owned by private individuals, but this is not the test. The test is, could the Tucker tract be reached by means of any public highway, or by any adequate way to which the grantee, Tucker, had a right? That is, did the Tucker tract border on any public highway or way that was accessible to the occupants of the land by which they could reach the county road? The right of passage over government lands referred to was a mere revocable license by sufferance which might he terminated at any time by settlement of the lands under the United States land laws. Another means of access to the property sufficient to prevent the implication of a way by necessity must be reasonably adequate to meet the requirements of the situation, and to enable the granted land to be used for the purposes for which it is suitable, and acquired: Camp v. Whitman, 51 N. J. Eq. 467 (26 Atl. 917); Ipswich v. Proprietors of Jeffrey’s Neck Pasture, 174 Mass. 572 (55 N. E. 642).

7. • The way claimed by plaintiff is definitely described in the complaint by reference to the roadway now marked out and constructed across the premises of the defendant. The road so constructed and described served as a monument for the whole distance’ of the roadway. It is well known that boundaries of land may be described in conveyances by means of a road. Such a monument is more lasting than stakes which are. often referred to for such purposes. The objection of the defendant to the description of the roadway pertains more particularly, to perpetuation of the delineation of the way than to the definiteness thereof. The complaint substantially portrays the facts of the case above stated and shows that plaintiff is entitled to a way of necessity over the land of the defendant by an implied grant from Compton to plaintiff’s grantor. The demurrer to the complaint was properly overruled. The objection to the testimony is not well taken.

8. The fact that such roadway was closed for about a year and a half beginning about 1907 would not. defeat plaintiff’s right. It merely shows Tucker was slow to litigate. Tucker’s right to the way having been vested by implied grant, nothing short of a use by the owner of the servient estate adverse to the enjoyment of the easement for a period sufficient to create a prescriptive right, will destroy the right granted: 14 Cyc. 1187, and cases cited. It follows that the decree of the lower court should be reversed and one entered in accordance with the prayer of plaintiff’s complaint. The decree of the lower court should therefore, be reversed. One will be entered enjoining defendant from obstructing or interfering with plaintiff’s free use of the right of way described in the complaint, to the extent of sixteen feet in width or so much thereof as may be necessary as a means of ingress to and egress from the premises of plaintiff. Beversed. Decree Entered.

McBride, C. J., and Johns and Bennett, JJ., coiicur.