Akers v. Baril, 66.

• Decision Date: 17 March 1942
• Docket Number: No. 66.,66.
• Citation: 2 N.W.2d 791,300 Mich. 619
• Parties: AKERS et ux. v. BARIL et ux. SETTER v. SASS et al.
• Court: Michigan Supreme Court

300 Mich. 619

2 N.W.2d 791

AKERS et ux.

v.BARIL et ux.

SETTER

v.SASS et al.

No. 66.

Supreme Court of Michigan.

March 17, 1942.

Consolidated actions by George W. Akers and Louise C. Akers, his wife, against Gerald Baril and Lila Baril, his wife, and by Evelyn Setter against George J. Sass and others, involving the right to easement. From decrees declaring easement appurtenant to certain tract, George W. Akers and Louise C. Akers, his wife, appeal.

Decree affirmed.

Appeal from Circuit Court, Oakland County, in Chancery; George B. Hartrick, Judge.

Before the Entire Bench, except WIEST, J.

Glenn C. Gillespie and Carl A. Braun, both of Pontiac, for appellants George W. and Louise C. Akers.

Verne C. Hampton, of Pontiac, for appellees Gerald Baril, Evelyn Setter and others.

BUTZEL, Justice.

A tract of over 57 acres at the southeast corner of Wattles and Crooks Roads in Royal Oak township, county of Oakland, Michigan, was divided into 9 parcels by its owner, George J. Sass. For better understanding of the facts, a rough drawing is given below which corresponds to plaintiffs' Exhibit 2, as modified by stipulation filed by the parties and testimony.

Two cases involving the same easement, claimed by Gerald Baril and wife and Evelyn Setter, were consolidated, tried and brought here on one appeal. The trial court held that the northerly 25 feet of the 10 acres immediately below Parcels Nos. 1, 2 and part of 3 were impressed with an easement in favor of the claimants. George J. Sass, the former owner of the entire tract, did not plat the property but sold large lots by metes and bounds. Parcel 1 is bounded on the north by Wattles Road, known also as the 17-Mile Road, and on the west by Crooks Road. Parcel 1 contains somewhat less than 5 acres of land. Parcels 2, 3, 4, 5 and 6 each contain 5 acres. South of Parcels 3 and 4 there was carved out a 3-acre tract. The other two tracts consist of 10 and 17 acres each, as shown by the drawing. Evelyn Setter, Sass's grantee and the owner of Parcel 3, deeded the southerly 1 1/2 acre sub-parcel to Gerald Baril and wife. They built a home and a garage thereon. It will be noted that this 1 1/2-acre, the 3-acre and the 17-acre tracts have no frontage on the main roads. The 1 1/2-acre parcel is wholly isolated, at least for vehicles of all kinds, if it does not have the use of the easement as to ingress and egress claimed by its owners. There is a deep and wide depression between the 1 1/2 and the 3 1/2 acres of Parcel 3, which is filled a large part of the time with water. The only way the owners of the 1 1/2 acres of property would have for their vehicles would be over the 25-foot strip, or by means of a bridge which they would have to build at a cost both prohibitive and out of proportion to the value of their entire property. The bridge would lead to the upper 3 1/2 acres owned by Mrs. Setter, mother of Mrs. Baril.

IMAGE

On May 3, 1928, Sass and wife, and others, deeded the 10-acre parcel to Frank and Jennie Hopkins. The deed after giving a description of the property stated: ‘The first parties hereby reserve the north 25 feet of the above described property for roadway purposes.’ In June, 1937, Hopkins and wife sold on land contract to George W. Akers and Louise C. Akers the same property with the same north 25 feet excepted for roadway purposes. Both in 1928 and 1938, Hopkins and wife gave mortgages on the property containing the same description and the same reservation. Counsel stipulated that at the time Sass reserved the 25-foot strip for roadway purposes, he was also the owner of the entire Parcel 3 and the 3-acre tract, which we have designated Parcel 7 on the drawing. As late as June 23, 1937, in order to correct the description in the former deed, Sass and wife gave Hopkins and wife a quitclaim deed of the same property. The deed as recorded contained the same reservation as to the north 25 feet for roadway purposes.

In August, 1937, Sass and wife deeded the entire Parcel 3 to Evelyn Setter and on the same day she deeded the southerly 1 1/2 acres thereof to Gerald Baril and Lila M. Baril. In 1940, Hopkins and wife gave a new land contract to Akers but dated it back to June 22, 1937, the date of the former contract, and left out the reservation of the 25 feet for right of way. At about the same time, Sass gave a quitclaim deed dated back to June 22, 1937, to Hopkins. It contained no reservation of the right of way. Subsequently to 1928 an additional right of way was established down the easterly side of Parcel 4. This would give the owners of Parcel 7 (the 3-acre tract) and the 17-acre tract means of ingress and egress. However, the reservation of an easement of way apparently for the benefit of all of grantor's remaining property adjacent to such first right of way, and existing at the time of the sale of the remaining property, cannot subsequently be extinguished by the former grantor.

The titles to both Parcels 3 and 7 were in Sass, when he reserved the right of way in his deed to Hopkins, hence with respect to those parcels such reservation was not void...