Bennett v. Evans

• Decision Date: 10 February 1956
• Docket Number: No. 33842,33842
• Citation: 74 N.W.2d 728,161 Neb. 807
• Parties: Curtis O. BENNETT and Katherine Bennett, Appellants, v. Harold K. EVANS and Elizabeth Evans, Appellees.
• Court: Nebraska Supreme Court

Page 728

74 N.W.2d 728

161 Neb. 807

Curtis O. BENNETT and Katherine Bennett, Appellants, v. Harold K. EVANS and Elizabeth Evans, Appellees.

No. 33842.

Supreme Court of Nebraska.

Feb. 10, 1956.

Syllabus by the Court.

1. In a case resting on a claim of an implied reservation of an easement, the easement must be one that is so open, visible, and apparent that it directs the attention of its existence upon such examination as would ordinarily by given.

2. Where an actual survey is required to determine the fact of an encroachment, the easement is not open, visible, and apparent.

3. Circumstances which may be sufficient to imply the creation of an easement in favor of a conveyee may not be sufficient to imply the creation of one in favor of the conveyor.

4. As a general rule, there is no implied reservation of an easement in case one sells a part of his land over which he has previously exercised a privilege in favor of the land he retains, unless the burden is apparent, continuous, and strictly necessary for the enjoyment of the land retained.

5. A grantor cannot derogate from his own grant and as a general rule he can retain a right over a portion of his land conveyed absolutely only by express reservation.

Perry, Perry & Nuernberger, Lincoln, for appellants.

Sterling Mutz, Lincoln, for appellees.

Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This action originated as one in ejectment to secure the possession of the west 3 feet of Lot 9, Block, 1, Linwood Manor in Lincoln, Nebraska. The defendants are the owners of Lot 10, Block 1, which is contiguous to Lot 9 and immediately west thereof.

The defendants by answer admitted plaintiffs' ownership of Lot 9 'except the portion thereof which is occupied by the garage and driveway of the defendants on the west side of the plaintiffs' property.'

Defendants further alleged that the titles of the parties came from a common owner of both lots who built the garage and driveway where they are now located and thereby established the boundary line between the properties 'at a point just east of the garage and driveway'; and that plaintiffs purchased with knowledge of the location of the boundary line and were estopped from claiming a right of possession of the property on which the garage and driveway are situated.

By cross-petition, defendants alleged a right to and prayed for a decree fixing and establishing the boundary line and that defendants be decreed to be the owners of all that portion of Lot 9 'on which the garage and driveway of the defendants extend over and upon the same' or that they be decreed to have a perpetual easement for its use and occupancy appurtenant to the land.

The reply consisted of a general denial and allegations of maters not necessary to a decision here.

The trial court found generally for the defendants. The trial court decreed that defendants had a perpetual easement on the west 3 feet of Lot 9 as a reserved easement and decreed that it be construed as a covenant running with the land.

Plaintiffs appeal.

We reverse the judgment of the trial court and remand the cause with directions to enter a judgment for the plaintiff.

A jury was waived in the trial court. The action was tried and disposed of as one in equity without objection by the parties.

The material facts out of which this controversy arises are not in substantial dispute.

Evans & Moore, a partnership, owned, platted, and developed this addition. The defendant Evans was a member of the partnership. Moore died in September 1954.

Each of the lots involved here is rectangular in shape, by plat 60 feet in wideth facing the street and 120 feet in depth.

Sometime during the month of July 1952, the partnership began the construction of houses, one on each of Lots 9 and 10. The partnership also built a garage, intended to be a part of improvements on Lot 10, but actually encroaching on Lot 9 lengthwise of the garage a distance of approximately 2 feet. The garage was built about two-thirds of the way down the lot, with a concrete floor and foundation, and a frame superstructure. There was an overhang of the eaves of approximately 6 inches beyond the 2 feet. The garage was completed sufficient to be used for storage of personal property by August 15, 1952.

On September 17, 1952, the plaintiffs purchased Lot 9 by contract from the partnership, made a substantial down payment, and were delivered the keys to the property.

Clearly both of the contracting parties understood that the purchase and sale involved the 60-foot by 120-foot lot and improvements. Neither of the contracting parties then knew that the garage encroached upon Lot 9. Neither of the parties contemplated that the garage was involved in the sale.

On October 18, 1952, the partnership conveyed Lot 9 to the plaintiffs by deed of general warranty. The reservation here claimed is not made in the deed. Plaintiffs moved into the property about that time.

On January 14, 1953, the partnership conveyed Lot 10 to the defendants, the defendant Harold K. Evans being a grantor as a member of the partnership and a grantee in the deed.

Sometime after plaintiffs moved into the property, a driveway was constructed along the east side of defendants' property. This driveway encroaches on plaintiffs' property its entire length, beginning with 6 inches at the front of the lot and 2 inches at the garage. It does not appear that an encroachment was actually intended when this driveway was built.

Subsequent to their purchase of the property, plaintiffs undertook to find the exact location of their west line. They could not locate a stake at the southwest corner. They were told by Moore and Evans or by Moore, to measure from the southeast corner. Sometime after Christmas of 1953, plaintiffs did so and always 'came up behind this other garage.' They related this fact to Moore. He then had the property surveyed in May 1954, when it became definitely known that the encroachments existed as above set out. Evans did not know of the necroachments until he was shown the results of that survey.

The parties then undertook to negotiate a settlement. That failed. In October 1954, this litigation began.

From the above recital of the limited issues made and the evidence, it is patent that the trial court's decree granting a perpetual easement along the west 3 feet of plaintiffs' property is clearly erroneous. It has neither pleading nor facts to sustain it.

Plaintiffs here rely on our decision in Goozee v. Grant, 81 Neb. 597, 116 N.W. 508. The facts in that case are quite similar to the facts here. That case determined an issue of estoppel, such as defendants pleaded here. While not stated in the opinion, that decision may well have turned upon the rule stated in Lingonner v. Ambler, 44 Neb. 316, 62 N.W. 486, and subsequent cases, that: 'To create an estoppel in pais the party in whose favor the estoppel operates must have altered his position in reliance upon the words or conduct of the party estopped.' The issue which we have here does not appear to have been presented nor decided in the Goozee case.

We have here a case where the owners of property convey a part of it to a third party without reservation or exception, and retain the remainder. The estate conveyed is now alleged to be the servient estate. The estate retained is now alleged to be the dominant estate. Stated otherwise, the defendants contend that the partnership, contrary to the terms of its deed, and contrary to the intention of the parties, had in law an implied reservation of the land in Lot 9 upon which the garage and driveway encroach.

The only theory upon which defendants can prevail is that at the time the servient estate was conveyed the partnership reserved from the grant the right to continue the encroachment upon Lot 9. This is in effect to permit the grantor to derogate from its express grant.

It is patent that whatever rights of easement, if any, the defendants have over the property of the plaintiffs, arise as a result of, and at the time of, the conveyance by the partnership to plaintiffs. Prior thereto there could not have been an easement. Subsequent thereto nothing occurred upon which a reserved easement by implication could arise. It accordingly follows that defendants have no easement over the plaintiffs' property insofar as that part is concerned where the driveway is located. Plaintiffs are entitled to prevail as to that part of their action. The trial court erred in its decree granting an easement for the driveway.

Defendants here rely on the rule stated in Fremont, E. & M. V. R. R. Co. v. Gayton, 67 Neb. 263, 93 N.W. 163, where we held: 'Where an owner of land by any artificial arrangements effects an advantage for one portion as against another, upon severance of the ownership the grantees of the two portions take them respectively charged with the easement and entitled to the benefit openly and visibly attaching at the time of the severance.'

The above is a rule of construction generally stated. 3 Tiffany, Real Property, 3d Ed., § 781, p. 255.

Defendants also rely upon the decisions in Znamanacek v. Jelinek, 69 Neb. 110, 95 N.W. 28, 111 Am.St.Rep. 533; Arterburn v. Beard, 86 Neb. 733, 126 N.W. 379; Seng v. Payne, 87 Neb. 812, 128 N.W. 625; De Conly v. Winter Creek Canal Co., 110 Neb. 102, 193 N.W. 157. There may be other cases of similar import such as Moll v. Hagerbaumer, 98 Neb. 555, 153 N.W. 560, not cited by the defendant.

The first question is: Was the encroachment on Lot 9 open and visible, or apparent?

Obviously the garage was there for anyone to see when the plaintiffs purchased their property. But was it apparent that it encroached upon the property which the plaintiffs bought? It is shown without dispute that neither the plaintiffs nor Moore nor Evans considered that there was an open, visible, or apparent encroachment. It took a survey to establish that ...