38 Cal. 111 | Cal. | 1869
Lead Opinion
In the first count of the complaint, it is alleged that Wolfle, who was the owner of a certain tract of land, conveyed the easterly portion thereof to Carter; that, in and by the deed of conveyance, Wolfle “ reserved to himself the privilege, free use and right of way through the premises conveyed by said last mentioned deed, and described therein, to the embarcadero on said Santa Margarita creek, which right of way, reserved as aforesaid, thereby became, and was and is appurtenant to the remaining portion of the premises hereinbefore described, and the premises so conveyed by said Wolfle to said Carter thereby became, and was and is subject to the said right of way.” There is no other allegation in that count showing, or more fully stating, the origin of the right of way over the land conveyed to Carter. The defendant
An easement may be created by grant, or it may be acquired by prescription. The grant may be either express or implied. A reservation of an easement in the deed by which the lands are conveyed is equivalent, for the purpose of the creation of the easement, to an express grant of the easement by the grantee of the lands. There is nothing in the first count going to show a grant of the easement by implication ; and the question is, whether the terms of the deed, as therein alleged, show an express grant. The only allegation of a grant is that already quoted: that Wolfle “reserved to himself the privilege, free use and right of way through the premises conveyed, ” to the embarcadero. The averments following this: that thereby the right of way so reserved became appurtenant to the premises reserved by Wolfle, and that, thereby, the premises conveyed to Carter became subject to said right of way—are not the averment of facts, but of conclusions of law.
To the creation of a right of way that amounts to an easement, and not merely to a right of way in gross, two tenements are necessary—the dominant,- to which the right of way belongs, and the servient, upon which the obligation rests. (Wash, on Ease. 3; Wolf v. Frost, 4 Sand. Ch. 72.) The principal distinction between a right of way in gross and an easement is found in the fact that in the first there is, and in the second there is not, a dominant tenement. The right of way is in gross, and personal to the grantee, because it is not appurtenant to other premises. The owner of premises may grant the right of way in either form, and, if it is the
Though a right of way may be granted in gross, this is never presumed, when it can fairly be presumed to be appurtenant to some other estate. But this question is to be determined by a construction of the grant. (Wash, on Base. 28.) The fact appearing aliunde the grant, that the grantee owned an estate, would not tend to show that the way was granted for the benefit of such estate. Had the grantee"'! owned several distinct parcels of land, it would not be contended that the way was appurtenant to each of them. But, there is no better reason why it should be appurtenant to one parcel, when the grantee owned only the one parcel, than to each parcel, when he owned several parcels, if in neither case, it appears from, the grant that the right of way was created for the benefit of any particular estate.
A further objection is found in the Statute of Frauds, to construing the right of way as appurtenant to the land of the plaintiff. A right of way is an interest in land, and can be conveyed only by an instrument in writing. The writing must describe the interest conveyed. If it is appurtenant to another tract of land, it must be so described in the conveyance, for that fact could not be added to the instrument by parol evidence, without violating of the statutory rule. It is of the very substance of an express grant, that the way be granted for the benefit of a particular estate, and the description of such estate—the dominant estate—is as essential as that of the servient estate.
But if the averment that the “right of way reserved as aforesaid, thereby became, and was and is appurtenant to the remaining portion of the premises hereinbefore described,” is not a mere legal conclusion, as we hold, but an averment that the way was, in fact, appurtenant, then that averment was sufficiently denied in the answer, and the plaintiff was
Judgment reversed, and cause remanded for a new trial.
Dissenting Opinion
I do not concur in the conclusions at which my associates have arrived in this case. A deed reserving or creating an easement or right of way is to be construed like any other deed or instrument, according to the intention of the parties to it. When the intention appears from the face of the instrument, viewed in the light of the surrounding circumstances, effect will be given to it accordingly. If it appears from the deed, thus construed, that it was intended to reserve only a personal right to pass over the land, this is what is termed a right of way in gross, and is neither assignable or appurtenant to any other land. On the other hand, if it appears that it was intended to create a permanent right of way, for the benefit of an adjoining or contiguous tract, by whomsoever owned or enjoyed, then it is an easement in a legal sense, which becomes appurtenant to such other tract, and passes, with the title, to all subsequent holders of it. The question for solution in this case is, whether the deed from Wolfle to Carter reserved to the former only a right of way in gross, which was personal, and not assignable, or whether it created an easement which became appurtenant to the remaining portion of the tract, not sold and conveyed by Wolfle to Carter. The facts are, that Wolfle, being the owner of a tract of land, sold and conveyed the eastern half of it to Carter, and in the deed, granted and conveyed also to Carter a right of way through the western half, to the Petaluma road, and, in the same deed, reserves to himself “the privilege, free use and right of way” through the premises conveyed to Carter, to the embarcadero on Santa Margarita creek. Was this right of way, mutually secured to the parties, intended by them to be only a personal right, not transferable, or was it designed to be permanent and annexed to the respective tracts by whomsoever they might thereafter be held and enjoyed?
The two tracts are sufficiently described, and each becomes the dominant tract in respect to the right of way secured across the other. If either had stood alone and unconnected with the other, it might well have been deemed a mere personal privilege, not appurtenant to the land. But when the owner of a tract of land sells and conveys one half of it, reserving a right of way across it, and, in the same deed, grants to his vendee a right of way across the other half, it appears to me to be obvious that these were privileges intended to be annexed to the respective tracts, and to become appurtenant to them, and, of course, to pass with the title. In my opinion, the judgment ought to be affirmed.
