Wilson v. Riggs, 27 App. D.C. 550

Wilson v. Riggs

27 App. D.C. 550 | D.C. Cir. | 1906

Mr. Justice McComas

delivered the opinion of the Court:

After due consideration of the whole case, we think that tinder the rulings of this court in Frizzell v. Murphy, 19 App. D. C. 440, the learned court below committed no error in dismissing the appellant’s bill. The facts of that case were like the facts in this, and-it was there said: “The more important, question is as to the extent and effect of the alleged implied grant of an easement for the benefit of the house on lot No. 5,. as against lot No. 6. Both lots are in the same subdivision, and are adjoining each other, and they belonged to the same-owner, and the houses on both lots were built by him while he was such owner, and the lot 5, with the building and all improvements, easements, rights, and privileges thereto appertaining, were first conveyed and disposed of by the then owner of both lots. By this severance, what was at that-time a mere quasi-easement for the benefit of the building' on lot No. 5-became a fixed and permanent easement by implied grant, and-the owner thus conveying the one lot as the quasi-dominant *553tenement could not derogate from his grant or deny to his. grantee, or those claiming under the latter, the use and benefit of what was, at the time of severance of the unity of ownership, an open and apparent easement reasonably necessary to the enjoyment of the part granted. The principle seems to be well settled, both upon principle and authority, that where the owner of both the quasi-dominant and quasi-servient tenements conveys the former, retaining the latter, all such continuous and apparent quasi easements as are reasonably necessary to the enjoyment of the property pass to the grantee, giving rise to an easement by implied grant.”

Barr was an architect, and we may well believe that in his judgment the structures in dispute were reasonably necessary to the enjoyment of the property of the appellee, and also that the encroachments of the appellant’s bay window was of like-consequence to him. If Barr had applied for an injunction, he should not have prevailed in a court of equity, and, as was said in Frizzell v. Murphy, 19 App. D. C. 447: “It is very clear the grantor himself, as the owner of lot No. 6, not having made any such reservation in his grant, could not, with success, have asserted a claim to have the projection removed from the house on lot 5; nor could he have maintained an action against the owner of that lot as for a nuisance, because of such projection. And what he could not do, those who claim under him cannot do, because they are equally bound by the grant made by the original grantor of lot 5 as the grantor himself under whom they claim and hold lot 6. They hold the latter lot as the servient tenement of the' easement created by the prior agent of William D. Cronin. It was the right of the purchaser, under the prior grant by William D. Cronin, to hold and enjoy the house upon lot 5 in the same condition in which it had been conveyed by such prior grant; and neither Cronin, the prior grantor, nor any subsequent grantee under him of lot 6, could question that right.”

We think it unnecessary to review the cases cited by counsel, or to consider the question of what is necessary or reasonably necessary where the easement claimed is light, or ditches, or right of way, or flumes, or stream. The question before us is *554settled in this jurisdiction; nor may we forget the terms of the grant by Barr to the appellee in this ease already mentioned, nor that these appurtenances were not only visible but obvious and conspicuous. This court and the supreme court of this District in general term, in the case of McPherson v. Acker, MacArth. & M. 150, 157, 48 Am. Rep. 749, have not limited such appurtenances to those which are absolutely necessary to the enjoyment of the property. It is manifest that the size and appearance of the porch and the convenience of the porch and areaway are elements in the value of the property, which were part of the consideration and were paid for when the appellee purchased the property from Barr. The appellant now insists, standing in Barr’s place, that the porch should be removed or refashioned, although it is clear that such changes would surely injure the appearance of the property, and would likely inconvenience the appellee himself or his tenant in the enjoyment of the dwelling house. We cannot agree that the appellant, Barr’s grantee, may now deny to the appellee, Barr’s prior grantee, the right to maintain and use the porch, the areaway, and the pavement in the same way these constructions existed when Barr conveyed the fee and all these appurtenances to the appellee. It was well said that “a grantor cannot derogate from his own grant, while a grantee may take the language of the deed most strongly in his favor. The law will imply an easement in favor of a grantee more readily than it will in favor of a grantor.” Wells v. Garbutt, 132 N. Y. 430, 30 N. E. 978; Paine v. Chandler, 134 N. Y. 388, 19 L. R. A, 99, 32 N. E. 18. See generally Warner v. Grayson recently decided by the Supreme Court [200 U. S. 257, 50 L. ed. —, 26 Sup. Ct. Rep. 240; S. C. 24 App. D. C. 55].

The order of the court below dismissing the bill will be affirmed, with costs and it is so ordered. Affirmed,