217 Mich. 554 | Mich. | 1922
Plaintiff owns and resides upon 40 acres of land in Hillsdale county described as the S. E. *4 of the N. W. section 20, in Allen township. A highway runs east and west through it about 20 rods south of its north line. Defendant owns the 40 acres joining "plaintiff’s on the north, which cannot be reached by a highway and is accessible to him only by going over the land of others. These two pieces of land are not claimed to have ever belonged to the same owner or been a. part of the same farm. Plaintiff bought his 40 acres in 1915. Defendant
Defendant’s father, Jonathan Stafford, bought the 40 acres lying north of plaintiff’s, which then belonged to John Watkins, considerably over 40 years before this suit was begun. At first in getting to it from the highway he took liberties in traveling over Watkins’ land which irritated the latter and some friction followed between the two. This soon culminated in an amicable adjustment between them under which the elder Stafford secured from Watkins a right of passage to his 40 along the way now in dispute, paying him $50 therefor, although the then value of the land upon which the right rested did not exceed $10, as the trial court determined. He then built a fence two rods east of the west line fence of Watkins’ 40
As to the nature of the right acquired by the elder Stafford from Watkins, defendant contends that his father bought and paid for a perpetual right of way, or easement, while plaintiff claims it was but a life lease or mere license. The contracting parties were dead and no direct witness to their agreement was produced. An old neighbor who for years had not been on speaking terms with defendant testified that he once heard some talk between Watkins and the elder Stafford about “buying a right of way to a farm” in which Watkins offered to lease the latter a lane on his east line for $25 or on the west for $50 and Stafford said emphatically he would not “buy a lane through the swamp for $25, he would rather have the hard land for $50,” and on another occasion he
Stating the controlling question to be “whether or not the rights granted by John Watkins to Jonathan Stafford were a license or an easement,” the trial court found, as the practically undisputed evidence shows, that the elder Stafford paid several times the value of the land included in this lane when he acquired from Watkins a way of travel along it more than 40 years before this controversy arose, and since that time he and his successors in title to the north 40 which it connected with the highway have openly, notoriously and continuously used it as a right of way to and from said 40, claiming to do so as a matter of right. Against the presumption of a grant of an easement arising from such a state of the facts the court held plaintiff had failed to show such use was permissive only (citing Berkey & Gay Furniture Co. v. Milling Co., 194 Mich. 234), and dismissed his bill of complaint, confirming defendant’s right to a use of said lane as a way of access appurtenant to his 40 acres.
If the right granted the elder Stafford was a mere license, or only permission, with or without consideration, to do some act or series of acts on the premises without any permanent or actual interest in the land itself, it could not ripen into an easement by prescription (Standard v. Jewell, 206 Mich. 61); but if the
This ancient transaction rests on oral evidence with no proof that the agreement was in writing. The facts surrounding it indicate an easement rather than a lease or license. A gross sum far beyond the value of the land itself was paid down, the strip was defined 'and set off by a fence, possession for the purposes of a right of way taken, and no annual rent was ever thereafter paid or claimed during the 40 succeeding years in which the elder Stafford and Ms successors openly and peaceably used this lane as a right of way to the 40 acres in relation to which he had so secured right of access.
In Berkey & Gay Furniture Co. v. Milling Co., supra, It is said, with sustaining authorities:
“It has been held that the open, notorious, continuous and adverse use across the land of another from a residence or place of business to a public road for more than twenty years affords a conclusive presumption of a written grant of such way (Clement v. Bettle, 65 N. J. Law, 675 [48 Atl. 567]),- and that when the passway has been used for something like a half century, it is unnecessary to show by positive testimony that the use was claimed as a matter of right, but that after such user the burden is on the plaintiff to show that the use was ■ only permissive.”
We agree with the conclusions of the trial court tb,at plaintiff has failed to establish by any convincing testimony that the undisputed user running through all those years was permissive only as against the presumptions from the undisputed facts in the case.
The contention is made that defendant acquired no right to the driveway because no mention is made of it in his muniments of title to the 40 acres it connects with the highway. This easement rested upon the servient estate it crossed as an incorporeal hereditament appurtenant to the otherwise isolated 40 acres of Stafford for the benefit of which it was secured, incident to that estate as directly essential and convenient to its use and enjoyment (Fond du Lac Water Co. v. City of Fond du Lac, 82 Wis. 322 [52 N. W. 439, 16 L. R. A. 581]), and as such would pass with it by inheritance or conveyance of the land (Sanxay v. Hunger, 42 Ind. 44).
An indicated obligation assumed by the elder Stafford on procuring this easement was to segregate it by the erection and maintenance of a fence on the east side of the land or driveway. Mindful of the hostile
The decree is affirmed, with costs to defendant.