Bailey v. Hennessey

• Decision Date: 03 August 1920
• Docket Number: 15766.
• Citation: 112 Wash. 45,191 P. 863
• Court: Washington Supreme Court
• Parties: BAILEY et al. v. HENNESSEY.

191 P. 863

112 Wash. 45

BAILEY et al. v. HENNESSEY.

No. 15766.

Supreme Court of Washington

August 3, 1920

Department 1.

Appeal from Superior Court, Asotin County; Chester F. Miller, Judge.

Action by E. J. Bailey and others against Ellen M. Hennessey. Decree for plaintiffs, and defendant appeals. Affirmed.

Leo McCarty, of Lewiston, Idaho, and H. L. Post, of Asotin, for appellant.

E. J Doyle, of Clarkston, for respondents.

MACKINTOSH J.

The facts in this case as they are disclosed by the record can be no better stated than they are in the findings of the trial judge, and we will therefore quote findings Nos. 4 to 15 inclusive:

'(4) That on February 13, 1902, Nellie S. Ramsey became the owner of lot 1, block 9, Clarkston, Asotin county, state of Washington.

'(5) That prior to March 22, 1904, she erected on said lot, facing Sycamore street, on the south line of said lot two store buildings and a hotel, each of which buildings extended back to within 10 feet of the north boundary line of said lot, leaving a 10-foot alley or driveway along the entire north boundary line of said lot.

'(6) That on and prior to March 22, 1904, this 10-foot strip was used by the lessees and occupants of said building and the owner as a driveway to reach the rear of said buildings, and in the unloading of merchandise and furniture at the back entrance of said buildings.

'(7) That said buildings were erected with regular store and front entrances on Sycamore street, and that said store buildings were erected with rear doors and platforms with reference to said 10-foot alleyway, and that the floors of said buildings were constructed for the use of the entrances on Sycamore street, as store entrances; and the entrances on the alley for receiving and unloading merchandise and furniture from said store buildings.

'(8) That said driveway was apparent and obvious and has been continually used from the time that the first building was erected, up and to October 3, 1918, when the defendant constructed a fence and obstruction across said alleyway, immediately following which this action was instituted to restrain the defendant from interfering with the use of said alley way as such alley.

'(9) That said driveway is necessary for the convenient and comfortable enjoyment of said store buildings as they existed on and prior to March 22, 1904, and has continued as necessary for the convenient and comfortable enjoyment of the same ever since said time.

'(10) That on March 22, 1904, the said Nellie S. Ramsey deeded the east 40 feet of lot 1, block 9, Clarkston, to William McCarroll, the predecessor in title to the plaintiffs in this action.

'(11) That in October, 1908, said Nellie S. Ramsey deeded the west 87 1/2 feet of said lot 1, being the remainder of said lot, to J. E. Hennessey, the predecessor in title to the defendant in this action.

'(12) That since some time prior to March 22, 1904, and up to October 3, 1918, said driveway was continuously used by the plaintiffs and their predecessors in interest as such driveway, and was at all times necessary to the convenient and comfortable use and enjoyment of the said buildings.

'(13) That on October 3, 1916, the defendant obstructed said driveway by building across the same, and has since continued to obstruct the same.

'(14) That for 14 years prior to the obstruction of said driveway the plaintiffs and their predecessors in interest have openly used and continuously used the said driveway in loading and unloading merchandise and furniture at the rear entrance of said building and hauling such goods by such conveyances out of said buildings through said alley.

'(15) That since the erection of said buildings all of said buildings have been used as store and business buildings.'

The court having entered a decree, in conformity with the prayer of the complaint, that the respondents have the use of the alleyway, and that the appellant be forever enjoined and restrained from placing any obstructions therein, or preventing the free use thereof, the defendant has appealed.

Much of the discussion in the briefs and oral argument of the appellant can be disposed of, if we first clearly establish in our minds exactly what is being contended for in this action. This is not an action claiming a private way of necessity, nor is it an action seeking to establish a public way by open, notorious, and continued public use for over 7 years, nor is it an action to establish a private easement by prescription; but it is a claim by the respondents of a right to use this alleyway as an easement 'necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made,' and that the common owner, in 1904, erected buildings on the entire lot then owned by her with reference to the use of this disputed strip as an alley--the buildings having been constructed so that they would require a complete lowering of all the floors if the alley could not be used, and thereafter sold the buildings with the use of the alleyway as an inducement entering into the sale, and as an advantage connected with the property sold, that thereby an easement had been created of which the plaintiffs can assert the benefit. In other words, we are here dealing with only an easement by implication, to which rules of law different from those of easement by prescription, or public easements, or private rights of way of necessity, are applicable.

Easements by implication arise where property has been held in a unified title, and during such time an open and notorious servitude has apparently been impressed...