74 Ind. App. 255 | Ind. Ct. App. | 1920
The only question involved in this appeal is whether the appellee was at the commencement of this action the owner of an easement across certain land owned by appellant. The appellee filed his complaint in four paragraphs to quiet his title to said easement, specifically describing the same. Appellant filed a cross-complaint to quiet her title to the land over which the easement is claimed. The issues were closed by general denials. The case was tried by the court, and the facts were found specially.
It appears from the special finding that on August 22, 1874, and for a long time prior thereto, one Thomas Glascock was the owner and in possession of the southeast quarter of section 18, township 26 north, range 7 east, together with other lands in said section. Long before and ever since August 22,1874, there has existed and still exists a public highway running east and west along the south side of said land, and another extending
There is now, and for more than fifty years last past has been, a roadway running north from the highway
The court specifically found that said roadway was in existence and use obviously and apparently permanent by said Thomas Glascock, as a part of and appurtenant to the land now owned by appellee,.during the time said Thomas Glascock owned said real estate, together with the real estate now owned by appellant, upon which said roadway is located, and was so in existence and use as an obvious and apparently permanent roadway appurtenant to the land conveyed by Thomas Glascock to appellee; that said roadway, at the time of said conveyance to appellee, was reasonably necessary for the fair enjoyment of said land so conveyed; that by said conveyance, an easement and right in and to said roadway, for the purposes of ingress and egress, passed to the appellee; that said roadway has so continued in existence and use as an obvious and apparently permanent roadway and appurtenant to said land from the time of said conveyance to and including the time of the trial; that the appellee ever since said conveyance to him has been, and still is, the owner of said tract, and during all of said time has continued to use said roadway as a part of and appurtenant to said land; that said roadway has been in existence and fenced ever since August 22, 1874; that all of the land owned by appellee in said section was surrounded by land owned and possessed by other individuals, and did not touch any public highway; and that appellee could reach no public highway without passing over the land of other individuals until he purchased the twenty-acre tract in
The court upon the facts concluded that the law was with the appellee upon the complaint and cross-complaint, and that his title to said right of way and easement as a roadway should be quieted in him.'
It is appellant’s contention that the easement existed as a way of necessity, and that, appellee having acquired other property over which he could reach a public highway from the lands purchased from Thomas Glascock, his right to the way over the land of appellant ceased. Appellee’s contention is that Thomas Glascock, while he was the owner of the lands now owned by appellant and appellee, imposed an apparently permanent and obvious servitude upon the tract now owned by appellee, and that at the time of the conveyance of the tract to appellee said servitude was in use, and was reasonably necessary for the fair enjoyment of the land conveyed to appellee, and was appurtenant thereto j that, upon the conveyance to appellee, there arose by implication of law a grant of the right to continue the use of such servitude.
The Supreme Court of this state, in John Hancock, etc., Ins. Co. v. Patterson (1885), 103 Ind. 582, 2 N. E.
“Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case, 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.” Continuing, the court, after reviewing the authorities, said (p. 589):
In Parish v. Kaspare (1887), 109 Ind. 586, 10 N. E. 109, the court said: “We suppose it to be perfectly clear, that if the owner of land annexes to part of it a right of way as appurtenant to the land, and. then conveys the land to which the way is made an appurtenance, his grantees, near and remote, acquire an easement.”
In Moore v. Crose (1873), 43 Ind. 30, a way was claimed as being appurtenant to a tract of land. The court, in discussing the question, said: “The appellant claims that the way was appendant or appurtenant to the land conveyed by that deed. If so, the right to the way passed by the deed' conveying the land, and not by the separate quitclaim deed. ‘Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming. They must inhere in the land, concern the premises, and be essentially necessary to their enjoyment. They are of the nature of covenants running with the land, and like them must respect the thing granted or demised, and must concern the land or estate, conveyed.’ ”
This court, in Lucas v. Rhodes (1911), 48 Ind. App. 211, 224, 94 N. E. 914, said: “Where the owner of an
In Robinson v. Thrailkill (1887), 110 Ind. 117, 10 N. E. 647, the appellee claimed to be the owner of an easement to a private way over the land of appellant. In affirming the case, the court held that: “The easement passed with the grant of the land to which it was appurtenant, and was a burden upon the servient estate in the Hands of subsequent owners.”
A technical distinction has been made in some cases between what are called “apparent and continuous easements,” and “discontinuous easements,” the former being defined to be those constant and visible, and the latter those which are only visible in their exercise. Numerous cases can be found holding that a right of way is not such a continuous easement as will pass by implication upon the severance of an estate, inasmuch as it is enjoyed merely at intervals, leaving in the.interim- no visible sign of its existence. There is another line of cases holding that ways which are visibly and permanently established on one part of an estate for the benefit of another part of the same estate will, upon a severance of the estate, pass for the benefit of the
In Baker v. Rice (1897), 56 Ohio 463, 47 N. E. 653, the court applied the rule just stated to a private way which.was found to be plainly obvious and apparent, and reasonably necessary for the use and enjoyment of the property to which it was claimed to be appurtenant. In a syllabus prepared by the court it is said: “Where one who is the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another as a means of egress and ingress to the latter from his home and also to the public highway, which way is apparent, continually used, and reasonably necessary to the use and enjoyment of the land to which the way is constructed, and, also adds materially to its value, conveys by deeds of the same date, the part with the way to it to one of his children and the part with the way over it to another one of them each takes his part to be enjoyed with reference to the way as the same existed at the time of the division — the one with an implied grant of the way to it, and the other subject to such way as an easement therein.”
To the same effect, see Dee v. King (1905), 77 Vt. 230, 59 Atl. 839, 68 L. R. A. 860; Mitchell v. Seipel (1879), 53 Md. 251, 36 Am. Rep. 404; Scott v. Moore (1900), 98 Va. 668, 37 S. E. 342, 81 Am. St. 749; Liquid Carbonic Co. v. Wallace (1908), 219 Pa. 457, 68 Atl. 1021, 26 L. R. A. (N. S.) 327; Rollo v. Nelson (1908), 34 Utah 116, 96 Pac. 263, 26 L. R. A. (N. S.) 315; Grace Church v. Dobbins (1893), 153 Pa. 294, 25 Atl. 1120, 34 Am. St. 706; Brown v. Alabaster (1887), L. R. 37 Ch. Div. 490.
Judgment affirmed.