Bubser v. Ranguette
| Decision Date | 10 December 1934 |
| Docket Number | No. 30.,30. |
| Citation | 257 N.W. 845,269 Mich. 388 |
| Parties | BUBSER v. RANGUETTE. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by Hubert Bubser against Fred Ranguette. From a judgment of dismissal, plaintiff appeals.
Affirmed.Appeal from Circuit Court, Delta County, in Chancery; Frank A. Bell, judge.
Argued before the Entire Bench.
Yelland & Yelland, of Escanaba, for appellant.
Torval E. Strom, of Escanaba, for appellee.
From 1880 until 1925, lots 4 and 5 of block 15 of the city of Escanaba were both owned by the same parties. The lots are on the south side of Ludington street, and each is 25 feet wide and 140 feet deep. During these 45 years of single ownership of the two properties, a brick building 87 feet in depth and 25 feet in width was erected on lot 5. The rear portion of the building for 37 feet 7 inches of its depth is only 18 feet 8 inches in width, thus leaving an offset 6 feet 4 inches wide and 37 feet 7 inches in length in its east wall, which is the side adjacent to lot 4. Some time after the construction of the brick building, a two-story wooden building was erected in this vacant space. This addition is 12 feet 3 inches wide, 33 feet 5 3/4 inches deep, and 28 feet high, and therefore extends over on lot 4 a distance of 5 feet 11 inches. The wooden building is constructed of large timbers, clapboard on the outside, with a stone foundation, and is connected to and made a part of the brick building, which has been used for many years as a meat market. In front is the salesroom, the narrower rear brick portion is used as a refrigerator room, and the wooden part is a sausage room, which also houses the usual machines used in preparing meats for retail sales. The second floor of the entire property is used for living quarters, to which access is gained by stairways in both the brick and the wooden structures. Part of the stairway in the wooden building is on lot 4. Except for the meat market fixtures, the property was vacant at the time of trial.
The settlement of the estate of the last common owner, who died in 1925, resulted in the sale and conveyance of lot 4 on August 14, 1925, to the defendant, and of lot 5 on November 5, 1925, to the plaintiff. The projecting building is not mentioned in either deed; the only reservation in either being a grant to defendant of the use of a connecting sewer. Defendant commenced an action in ejectment as to the projection on August 14, 1933. Plaintiff then filed a bill in chancery to enjoin the ejectment action, praying for a decree establishing an easement as to that part of lot 4 occupied by the wooden building.
The bill was dismissed because of the absence of a grant or restriction in the deeds as to the claimed easement and no showing of the creation of an easement by implied reservation. The law action submitted with and governed by the disposition of the chancery case was decided in favor of defendant. Plaintiff appeals, raising the question of an implied easement as well as one of necessity.
We pass the question of the adequacy of the remedy at law and the jurisdiction of equity to restrain the action of ejectment, for the reason that neither party questions the propriety of determining the action in ejectment upon the facts found in the chancery case. This question raised in the bill and answer is not mentioned in defendant's brief, and is merely touched upon by a citation in plaintiff's brief. Where no supporting argument is presented in the briefs and the question is not discussed, it is presumed to be abandoned. McGraw v. Township of Lake, 266 Mich. 38, 253 N. W. 207. Nor do we need to spend much time on whether a right to encroach is an easement. The definition of an easement is stated in Morrill v. Mackman, 24 Mich. 279, 9 Am. Rep. 124. See, also, Munro v. Meech, 94 Mich. 596, 54 N. W. 290;McClintic-Marshall Co. v. Ford Motor Co., 254 Mich. 305, 236 N. W. 792, 77 A. L. R. 807; Tiffany, Real Property (2d Ed.) vol. 2, § 360, citing Ensign v. Colt, 75 Conn. 111, 52 A. 829, 946;Smith v. Lockwood, 100 Minn. 221, 110 N. W. 980; and Ruffin v. Seaboard Air Line Ry., 151 N. C. 330, 66 S. E. 317. The right to encroach may be an easement, though not necessarily so. In our case, the right, having been created at best by implication, could not be a determinable fee. It could not possibly be more than an easement. See Epworth Assembly v. Ludington & N. Ry., 236 Mich. 565, 211 N. W. 99, for the distinction. We conclude that the question involved here is that of a claimed easement.
Since neither plaintiff's nor defendant's deed contains any mention of the easement claimed by plaintiff, and as no right by prescription is asserted, it follows that, if created at all, the easement arose by implication at the time of the severance of the ownership of lots 4 and 5. As one cannot have an easement in his own lands, it could not have come into existence before that time.
The servient estate, lot 4, was conveyed some three months before the conveyanceof the dominant estate, lot 5. Hence the only theory upon which plaintiff can claim an easement is that at the time the servient estate was conveyed, the then owner of both lots impliedly reserved from the grant the right to continue the encroachment thereon-in short, an easement by implied reservation. To read an implied reservation into a deed is in effect to permit the grantor to derogate from his express grant. We have held that: ‘To entitle the complainant to a decree, the burden was upon him to establish that the servitude was apparent, continuous, and strictly necessary to the enjoyment of his lands.’ Brown v. Fuller, 165 Mich. 162, 167, 130 N. W. 621, 623,33 L. R. A. (N. S.) 459, Ann. Cas. 1912C, 853, citing Covell v. Bright, 157 Mich. 419, 122 N. W. 101; and see cases therein collected.
We apply these three tests to the case at bar:
Apparentness.-An apparent easement is one capable of being seen or known on careful inspection. Tiffany, Real Property (2d Ed.) vol. 2, p. 1279. As the building encroached almost 6 feet, the servitude was certainly apparent.
Continuity.-A discontinuous easement is one the use of which can only be had by the interference of man. Hence a continuous easement is one which is exercised without the interference of man. A way is a discontinuous easement, but drains and sewers are continuous easements. Morgan v. Meuth, 60 Mich. 238, 27 N. W. 509. As the right to maintain overhanging eaves is a continuous easement (Tiffany, Real Property [2d Ed.] vol. 2, p. 1282) then certainly the right plaintiff claims in this case is the same.
Necessity.-There remains only the third test. The trial judge held that plaintiff did not show any strict necessity for his continued encroachment upon lot 4. He said: ‘Its use is convenient but not necessary.’ Our attention is also directed to the trial court's statement that
Plaintiff argues that he is not required to establish ‘strict necessity,’ citing Smith v. Dresselhouse, 152...
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