Bullis v. Schmidt
| Citation | 93 N.W.2d 476,5 Wis.2d 457 |
| Parties | Harvey R. BULLIS et al., Respondents, v. Joseph SCHMIDT et al., Appellants. |
| Decision Date | 02 December 1958 |
| Court | Wisconsin Supreme Court |
Ebert, Kuswa & Ebert, Milwaukee, Lawrence Jay Ebert, Milwaukee, of counsel, for appellants.
Robert B. Ells, Milwaukee, for respondents.
The plaintiffs ground their cause of action for breach of the covenant against encumbrances upon the alleged existence of an implied easement, to maintain the underground sewer and water pipes across the plaintiffs' premises, which easement runs for the benefit of the adjoining property to the east.
The subject of implied easements is well discussed in 2 American Law of Property, pp. 255-263, secs. 8.31-8.43; 1 Thompson on Real Property (perm. ed.), pp. 630-674, secs. 390-411; and Annotation 58 A.L.R. 824. The last mentioned annotation is limited specifically to implied easements with respect to drains, pipes, and sewers. The law of implied easements, accepted in a majority of the states, is based upon the assumed intention of the parties at the time of the severance of the quasi dominant and quasi servient parcels formerly subject to common ownership. The facts necessary to be present in order to have such an implied easement come into being are stated in 1 Thompson on Real Property (perm. ed.), p. 630, sec. 390, to be as follows:
Thompson also points out that where the quasi dominant parcel is first conveyed by the common owner any resulting implied easement is one created by grant, while, if the quasi servient tenement is first conveyed, such resulting implied easement is one created by reservation. Ibid. p. 633, sec. 391. In some of those states which have adopted the majority rule as to implied easements, more relaxed standards have been applied to those created by grant as distinguished from those created by reservation. This is because a grantee may take the language of his deed most strongly in his favor while a grantor cannot derogate from his own grant. Wells v. Garbutt, 1892, 132 N.Y. 430, 30 N.E. 978. Because in the instant case the defendants conveyed away the quasi dominant tenement first, we are here concerned with an alleged implied easement created by grant and not by reservation.
However, Wisconsin has firmly and repeatedly rejected the majority rule of implied easements. Tarman v. Birchbauer, 1950, 257 Wis. 1, 42 N.W.2d 158, 160; 34 Marquette Law Review 123.
In the Tarman case this court declared that 'easements in the land of another, with the exception of rights of way by necessity, can only be created by grant or prescription.' We are inclined to the view that the statement, that the only implied easements recognized in this state are rights of way by necessity, may be too narrow an interpretation of the position previously taken by this court in view of the cases of Miller v. Hoeschler, 1905, 126 Wis. 263, 105 N.W. 790, 8 L.R.A.,N.S., 327, and Christensen v. Mann, 1925, 187 Wis. 567, 204 N.W. 499, 41 A.L.R. 1192.
In Miller v. Hoeschler, supra, this court stated, 126 Wis. at page 270, 105 N.W. at page 792:
'We cannot avoid the conclusion that, even if in some extreme cases there must be any easement other than right of way implied from necessity, that necessity must be so clear and absolute that without the easement the grantee cannot in any reasonable sense be said to have acquired that which is expressly granted; such indeed as to render inconceivable that the parties could have dealt in the matter without both intending that the easement be conferred.'
An implied easement, other than one for right of way, was recognized in Christensen v. Mann, supra, in the following language of the opinion, 187 Wis. at page 593, 204 N.W. at page 508:
'* * * where an owner of a tract of land, with a building thereon sells part of the land on which the building stands, retaining ownership of the balance of the land extending to the building, or where either party subsequently sells his interest, the right of lateral support not only of the land but also of the building arises in law, by implication, from necessity.'
We deem the above-quoted extract from the opinion in Miller v. Hoeschler, supra, clearly points out the test that must be applied, in determining whether any easements other than rights of way by necessity, may be created...
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