American Brass Co. v. Serra
| Decision Date | 23 February 1926 |
| Citation | 132 A. 565,104 Conn. 139 |
| Court | Connecticut Supreme Court |
| Parties | AMERICAN BRASS CO. v. SERRA. |
Appeal from Superior Court, Litchfield County; Earnest A. Simpson Judge.
Action by the American Brass Company against Frederico Serra for damages for interfering with plaintiff's right of way and for an injunction restraining defendant from interfering with it. Judgment for plaintiff, and defendant appeals. No error.
Frederic W. Dauch, of Waterbury, for appellant.
Walter E. Monagan and Walter F. Torrance, both of Waterbury, for appellee.
The facts found disclose that Lewis Markham owned in 1864 a large tract of woodland in Plymouth, which included the two adjoining tracts now owned by the plaintiff and the defendant respectively. In 1864 he conveyed to a predecessor in title of the plaintiff one of the adjoining tracts and retained the other. In 1868, while still owning the balance of his original tract, he conveyed by warranty deed to his grantee in the deed of 1864, to wit, the Holmes, Booth & Haydens Company, " the right of passway" across the balance of the original tract. This deed expressed the purpose of " the right of passway" as follows: " For the purpose of getting wood from the lot I sold to the company and for all other purposes connected with said lot as the case may require." Both these warranty deeds were duly recorded in Plymouth. The deed of the way is to be construed by its terms, and " the situation of the property, and the surrounding circumstances, with a view to ascertaining the intention of the parties." " The ordinary import of the language will be given in the absence of anything in the situation or surrounding circumstances to indicate a contrary intent." Sweeney v. Landers, Frary & Clark, 69 A. 567, 80 Conn. 578; Peck v. Mackowsky, 82 A. 199, 85 Conn. 193.
The language of the deed indicates a grant of a right of way in general terms. " A grant of a way in general terms will ordinarily be construed as creating a general right of way capable of use for all reasonable purposes." 2 Tiffany on Real Property (2d Ed.) p. 1332, § 367.
The surrounding facts disclose that the grantee of the way was the owner of a tract of woodland suitable only for growing wood in natural course, and likely to be cut only once in 30 or 35 years, in order to use the wood for burning in manufacturing establishments, and that, because of the hilly and swampy nature of the tract near the highways, it was impracticable to cart the wood from the land onto the highway otherwise than by a way over the grantor's land.
Levi D. Markham, the grantor of the plaintiff's tract, died in 1874, still owning the balance of the original tract, and in 1877 the administrator on his estate conveyed his interest in the balance of the large tract to Martin V. Barnes, and thence by mesne conveyances it came to one Oscar Knickerbocker in April, 1898, and in November, 1907, to one D. A. Scopino, and thence in December, 1918, to Frederico Serra, the defendant.
None of the deeds to the defendant's predecessors in title made any mention of the right of a passway across the tract of land which had been granted to the Holmes, Booth & Haydens Company. Neither Knickerbocker nor Scopino had, while in possession of the tract of land, actual knowledge of the grant of a passway nor of any claim in reference thereto, nor did the defendant have actual knowledge of a grant or any claim in reference thereto until some time in April, 1924. As both the dominant and servient tracts were owned by the same predecessor in title when the right of way was created in 1868, the chain of title of each tract runs back to this owner. Therefore, since the deed conveying the easement was on record, the owners of the servient tract, who purchased subsequent to the creation of the easement, had constructive notice of the existence of the easement and took title subject to the easement. 9 R. C. L. p. 805, § 61.
Oscar Knickerbocker was the owner and in possession of the land now owned by the defendant from on or about April 22, 1898, to on or about November 12, 1907. Some time after Knickerbocker acquired title to the property he desired to erect a boundary fence separating his land from that now owned by plaintiff for the purpose of confining his cattle. Knickerbocker thereupon consulted the agent of the Holmes, Booth & Haydens Company having charge of all the real estate of that company. At first the agent declined to pay, as requested, one-half of the cost of erecting the fence, and suggested to Knickerbocker that his cattle might run on the company's land, but finally agreed to pay one-half of the expense of erecting the fence. Knickerbocker thereupon caused a fourstrand barbed wire fence to be built along the boundary line of the two properties, and the Holmes, Booth & Haydens Company paid one-half of the expense thereof. The fence was built along the division line and over and across the passway as it had been used at the entrance to the property now belonging to the plaintiff. Nothing was said by either, however, about its being built across the passway. After Scopino acquired the land from Knickerbocker in 1907, he caused the barbed wires along the boundary fence to be raised and attached to the bottom low woven wire for the purpose of making the fence sheep proof.
In 1888 and 1889, the Holmes, Booth & Haydens Company cut the wood on the plaintiff's tract and carted the wood out over the adjoining tract, now of the defendant, formerly of Levi Markham, to the highway. The company in so doing used without objection or hindrance a passageway 5 or 6 feet wide over the servient tract. Since that time this way has been clearly visible, as evidenced by a well-defined course of wheel tracks, as if used by heavy trucking, and by a small wooden bridge over a small stream, and by bars across the tracks at the entrance into the highway. As the grant of the passway did not fix the route, its location was apparently determined and thus established, in accord with the reasonable convenience of the dominant and servient owners, by the practical location and use by the grantee, acquiesced in by the grantor at the time. 9 R. C. L. p. 791, § 48.
No question was raised in this case as to the proper location or use of the passway, nor was there any question as to the grant of a passway to the predecessor in title of the plaintiff. After this use of the passway the owners of the dominant tract did not use the way, and had no occasion to use the way, and would not have occasion to use it until the wood by natural growth reached a suitable size for cutting for fuel, which the finding discloses would be in 30 or 35 years.
This long-continued nonuser by the owners of the dominant tract of the easement of way created by grant did not extinguish it. As to the absence of a duty on the owner of the dominant tract to use a way in order to maintain title to it, the law has been stated as follows:
Adams v. Hodgkins, 84 A. 530, 109 Me. 366, 42 L.R.A. (N. S.) 741.
See, also, Arnold v. Stevens, 24 Pick. (Mass.) 106, 35 Am.Dec. 305; Seaman v. Vawdry, 16 Ves. Jr. 390.
In conformity to the law as thus stated, it is uniformly held that an easement created by grant cannot be lost by mere nonuser. Mason v. Honton, 31 A. 291, 67 Vt. 266, 48 Am.St.Rep. 817.
In Jones on Easements (Ed. of 1898) § 893, the law is stated as follows, " Mere nonuser of an easement created by deed, however long continued, does not create an abandonment" of an easement, hence does not extinguish the easement. See, also, Jones on Easements, supra, § 864; 9 R. C. L. p. 810, § 66.
Minor & Wurtz, on Real Property, states the law, in section 105, as follows:
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