Boyd v. McDonald

• Decision Date: 13 December 1965
• Docket Number: No. 4909,4909
• Citation: 81 Nev. 642,408 P.2d 717
• Parties: William BOYD and Ruth Boyd, husband and wife, Appellants, v. Frank R. McDONALD and Mary M. McDonald, husband and wife, Respondents.
• Court: Nevada Supreme Court

Page 717

408 P.2d 717

81 Nev. 642

William BOYD and Ruth Boyd, husband and wife, Appellants, v. Frank R. McDONALD and Mary M. McDonald, husband and wife, Respondents.

No. 4909.

Supreme Court of Nevada.

Dec. 13, 1965.

Coulthard & Smith and Samuel P. Cowley, Jr., Las Vegas, for appellants.

George LaVern Albright, Las Vegas, for respondents.

BADT, Justice.

Appellants here, defendants below, William Boyd and his wife Ruth, appeal a declaratory judgment of the Eighth Judicial District Court, that a parcel of the Boyds' land, hereinafter referred to as 'Lot 121' is burdened with 'easements' benefiting adjacent 'Lot 22' owned by plaintiffs below, Frank R. McDonald and his wife Mary.

Initially, the McDonalds purchased 'Lot 22' and the motel thereon from Larry and Lottie Johnson. At that time, the Johnsons owned both Lots 22 and 121 and were using a corner of Lot 121 for an alleged private extension of the motel's driveway. ¹ A motel sign also was on Lot 121, though some distance from the boundary between Lot 121 and Lot 22, and the west wall and roof of the motel extended 2.6 feet onto the east edge of Lot 121. ² A walled patio spread another 12 feet onto Lot 121. The annexed map, drawn approximately according to scale, copied from a map received in evidence, indicates the situation.

A few months later, the Johnsons sold Lot 121 to the Boyds, who eventually demanded that the McDonalds cease maintaining the alleged encroachments and trespasses on Lot 121. In turn the McDonalds instituted the action below to determine their 'rights' in the disputed property.

By its amended judgment the court ordered, adjudged and decreed:

'1. That the plaintiffs have an easement for their building and patio and for light and air adjacent to their building over, under and across the following described parcel of land: 'The East six (6) feet of Government Lot 121, said Government Lot being located in the Southwest Quarter (SW1/4) of the Northwest Quarter (NW1/4) of Section 28, Township 21 South, Range 61 East, M. D. B. & M., County of Clark, State of Nevada.

'2. That the plaintiffs have an easement for the purpose of a roadway for ingress and egress over and across the following described parcel of Government Lot 121: The north Forty (40) feet of the East six (6) feet of Government Lot 121, * * *. ³

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

'Said easement being further described as follows: [Emphasis supplied.] COMMENCING at the Southwest corner of the Northwest Quarter (NW1/4) of said Section 28, thence South 89~02'18'' East along the South line of Government Lot 121, a distance of 149.46 feet to a point, said point being the TRUE POINT OF BEGINNING; thence continuing South 89~02'18"' East a distance of 51.00 feet to the Southeast corner of said Government Lot 121; thence North 00~33'42'' East along the East line of said Government Lot 121 a distance of 43.00 feet; thence in a Southwesterly direction to a distance of 66.5 feet more or less to a point in the aforementioned South line, said point being the TRUE POINT OF BEGINNING.' ⁴

The amended judgment further ordered, adjudged and decreed 'that the plaintiffs have an easement to maintain a motel sign on, over, under and across Government Lot 121 * * *. Said sign may be maintained a distance of eighty (80) feet West from the East line of Government Lot 121; said sign shall be maintained as far to the South line of said Government Lot 121 as possible as to conform with City, County, State or Federal regulations or ordinances. Said easement shall include the right to lay cables or other necessary electrical fixtures, over, under and across Government Lot 121 to said sign.'

We have concluded that the lower court's holdings are contrary to applicable law and therefore must be reversed and remanded for additional findings in line with general rules set forth infra.

Both parties have proceeded throughout on grounds of 'implied easements.' We fear, however, that they have so confused that doctrine that we must begin by examining it at some length.

An easement is 'a right, distinct from ownership, to use in some way the land of another.' Kutschinski v. Thompson, 101 N.J.Eq. 649, 138 A. 569. 'It is an incorporeal hereditament, a servitude imposed upon corporeal property, and not a part of it. It gives no right to possess the land upon which it is imposed, but a right merely to the party in whom the [easement] is vested to enjoy [it].' Chollar-Potosi Mining Co. v. Kennedy, 3 Nev. 361. Easements may be created by express agreement, by prescription (a condition generally analogous to adverse possession), or by implication. As to the last, with which we are concerned here, it generally is said: 'the three essential characteristics of an easement by implication are (1) Unity of title and subsequent separation by a grant of the dominant tenement; (2) apparent and continuous user; and (3) the easement must be necessary to the proper or reasonable enjoyment of the dominant tenement.' Rogers v. Cation, 9 Wash.2d 369, 115 P.2d 702. It is this requirement of 'necessity' which often presents to the courts a major difficulty. There is wide variance as to the degree of necessity required, though the weight of modern authority only requires 'reasonable necessity.' On examination, we feel an even preferable standard is to construe necessity as really meaning 'intent.' 'The reason that absolute necessity is not essential is because fundamentally such a grant by implication 'depends on the intention of the parties as shown by the instrument and the situation with reference to the instrument, and it is not strictly the necessity of [the easement] that creates it.'' 2 Thompson, Real Property, Perm. Ed., § 337, p. 84; Marshall v. Martin, 107 Conn. 32, 139 A. 348; Rischall v. Bauchmann, 132 Conn. 637, 46 A.2d 898, 165 A.L.R. 559.

Ascertaining 'intent,' however, presents further difficulties. In Dressler v. Isaacs, 217 Or. 586, 343 P.2d 714, the Oregon Supreme Court presented this analysis:

'* * * It is evident that since we cannot find the grantor's real intent, we must draw the line between absolute need and mere inconvenience at the point where it will satisfy our idea of sound policy. Broadly stated, 'the inference as to intention which is made is influenced largely by considerations of public policy in favor of land utilization.' 4 Restatement, Property, Servitudes, § 476, comment g.

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'We think that the proper adjustment of the conflicting claims of the parties in this type of case can be arrived at more directly by attempting to determine what a reasonable grantee would be justified in expecting as a part of his bargain when he purchases land under the particular circumstances. Upon a division of land held under one title the grantee of the quasi dominant parcel is not entitled in every case to an easement predicated upon a previous use by the grantor. He must have reason for assuming that a right to continue the previous use of the quasi easement is a part of the bargain. * * * Since, in this class of cases, direct testimony as to the intent of the parties is absent or unsubstantial, we must come at the problem by considering whether reasonable men would regard the claimed easement as a legitimate incident of the bargain. * * * Looked at in this light, the test of reasonable necessity may be restated in terms of reasonable expectation. * * * Although we purport to find the grantor's intent in such cases, it is probably more accurate to say that the easement which is finally recognized through the process of construction is law created rather than grantor created. Under these circumstances, we are entitled to look at the reasonable expectations of a reasonable man receiving a conveyance of land.'

We emphasize that an easement by implication is, in effect, an easement created by law. It is grounded in the court's decision that as to a particular transaction in land, the owner of two parcels had so used one to the benefit of his other that, on selling the benefited parcel, a purchaser could reasonably have expected, without further inquiry, that these benefits were included in the sale. Minute encroachments generally provide classic examples of easements by implication. Certainly one bargaining for a building can reasonably expect that his purchase includes a right to leave a particular wall standing. Therefore, to be considered are the purchase price, ⁵ relations between buyer and the seller now severing his heretofore uniform parcel, ⁶ conduct of persons in similar positions, and occurrences which would put a reasonable man purchasing property on notice at least to inquire further as to the extent of his purchase. In the ultimate, a court must decide whether the situation at the time of severance from the common owner was such as now to require judicial intervention, an intrusion upon the firm lines already drawn by a writing between the parties, and a possible bypassing of the Recording Acts. Such moves are not to be effected lightly.

The difficulty with the instant case is an apparent total confusion by the parties as to what had to be shown to establish an easement by implication. Plaintiffs' most strenuous argument below and on appeal, was that they thought their purchase of the motel and Lot 22 included the area designated Lot 121. ⁷ If this be true, plaintiffs cannot claim any implied easements, since the foundation of an easement by implication is the belief one can use land owned by another. ⁸ Defendants, on the other hand insist plaintiffs were fully aware of the property lines at time of purchase. Johnson, defendants' witness, testified positively to this.

In granting the 'easements,' the trial court altered conditions existing at the time the common owner, Johnson, severed. Thus the addition to the driveway allowed below is but a portion of the alleged private driveway existing when the Johnsons sold to the McDonalds; the...