Burling v. Leiter

• Decision Date: 09 September 1935
• Docket Number: No. 95.,95.
• Citation: 272 Mich. 448,262 N.W. 388
• Parties: BURLING v. LEITER et al.
• Court: Michigan Supreme Court

272 Mich. 448

262 N.W. 388

BURLING

v.LEITER et al.

No. 95.

Supreme Court of Michigan.

Sept. 9, 1935.

Suit by Sarah Frances Burling against Susie Leiter and others, in which defendants filed a cross-bill. From a decree for defendants, plaintiff appeals.

Reversed and rendered.

NELSON SHARPE and BUSHNELL, JJ., dissenting.Appeal from Circuit Court, Muskegon County, in Chancery; John Vanderwerp, Judge.

Argued before the Entire Bench.

Penny & Clark, of Muskegon, for appellant.

Cross, Foote & Sessions, of Muskegon, for appellees Kushnak.

Joseph F. Sanford, of Muskegon, for appellee Leiter.

POTTER, Chief Justice.

Plaintiff, claiming to be the owner of lot 10, block 361, revised plat of the city of Muskegon, filed a bill of complaint to restrain defendants from entering upon, or driving or parking cars, automobiles, trucks, or vans upon, over, or across any part or portion of lot 10, block 361, revised plat of the city of Muskegon.

Defendants filed an answer in the nature of a cross-bill claiming an easement or right of way upon, along, or over the south part of lot 10, block 361, revised plat of the city of Muskegon, to reach the back part of lot 11, block 361, of the same plat, and sought to enjoin plaintiff from obstructing such easement or right of way.

After hearing before the trial court, the temporary injunction issued to plaintiff was dissolved and defendants granted the relief prayed. From this decree, plaintiff appeals.

Prior to 1885, Walter Burling owned all of the land and premises in dispute and erected a dwelling house upon a strip of land 22 feet wide lying south of lot 10. He owned this land together with lot 10, all of which was unplatted, and this 22-foot strip was sold by metes and bounds. Walter Burling erected a dwelling house upon the strip of land conveyed. This dwelling house as erected by Burling was 15 feet in width, and the lot or parcel was 22 feet in width. This house was erected so close to the south line of the 22-foot strip that you could not walk between that and the house immediately south of it. There was no way of getting between the houses. Such was the condition of the property when Walter Burling sold it.

In 1920, the McDonalds, who owned the house in question, remodeled it and built a porch on the front thereof. Before that time, there were steps on the north side of this house, but the platform which has since been inclosed was not built until 1920.

Walter Burling sold this 22-foot strip August 5, 1885, and after he sold it the lands were platted, and lot 11 was platted as 20 feet in width. The subsequent conveyances of the premises, including this house erected by Burling, were as lot 11. It was only after this suit was commenced it was discovered there was a strip of land 2 feet wide between the lands owned by plaintiff and the lands owned by defendants which neither of them owned. After the commencement of this suit, defendants acquired title to this 2-foot strip, and now own the same. The defendant Leiter bought lot 11 in 1928. She did not claim the driveway. She sought to sell lot 11 to plaintiff, and said in her letter: ‘If you would give one-half the driveway you can get five thousand dollars for it.’

The defendants Kushnak admit they knew at the time they acquired their equitable interest in lot 11 they did not acquire or own the driveway, and in July, 1930, sought to rent the driveway across the lands and premises of plaintiff. In a letter to plaintiff, defendant Jacob Kushnak said: ‘Sometime ago you asked me if I would just as soon pay some reasonable amount for the use of the driveway, or rent, * * * I hope that you and I can get to some agreement for what little it may be used by renters, friends or myself. Now, I think $4.00 is a reasonable amount for one year.’

Prior to the commencement of this suit and the acquisition by defendants of title to the strip 2 feet wide lying between lots 10 and 11, defendants' lands did not even adjoin those of plaintiff. It is apparent neither the defendants nor any of their predecessors in title subsequent to Walter Burling owned the lands and premises in dispute for a period sufficiently long to claim title by adverse possession. There can be no tacking of the rights of the several parties through whom defendants claim, such rights not having been specifically conveyed so as to build up any claim of right or title or to an easement by prescription or adverse possession.

If the house on the lands and premises of defendants was built, as the undisputed testimony shows, 15 feet wide, and so close to the south line thereof that you could not get between it and the adjoining house on the south, there was a strip 6 or 7 feet wide on the north side of the house before the lands and premises of plaintiff were reached. True, the defendants did not own all of this land and did not acquire the intervening strip of 2 feet until after the commencement of suit. In 1920, at a time clearly within the period of the statute of limitations, the platform was built on the north side of defendants' house, and, according to the surveyor, projected beyond the limits of lot 11, 2 3/ 10 feet-that is, far enough north to cover the entire width of the 2-foot strip, and 3/10 of a foot in addition thereto.

Under the statute of frauds, conveyances of real estate must be in writing. Comp. Laws 1929, § 13411. Northing will, therefore, pass as an easement to a dominant estate unless a right to thus use it has been made appurtenant to the granted premises, or is expressly mentioned in the deed conveying the same as intended to be conveyed thereby. Ward v. Farwell, 6 Colo. 66; Washburn's Easements and Servitudes (4th Ed.) pars. 18-32.

An easement proper is a privilege which the owner of one tenement has a right to enjoy in or over the tenement of another person. Parsons v. Johnson, 68 N. Y. 62, 23 Am. Rep. 149.

From the very nature of an easement, one may not have an easement in land which he owns in fee. Wright v. Rattray, 1 East, 381; Parsons v. Johnson, supra; Stuyvesant v. Woodruff, 21 N. J. Law, 133, 47 Am. Dec. 156;Michelet v. Cole, 20 N. M. 357, 149 P. 310; Washburn's Easements and Servitudes (4th Ed.) pp. 64, 192.

One who owns a tract of land, or two or more adjoining lots, when no public or private rights are interposed, may sell any portion he pleases, and the terms of the grant as they appear from the language of the deed legally construed will measure the rights of the grantee. Salisbury v. Andrews, 19 Pick. (Mass.) 250;Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748.

Easements are divided into continuous easements and noncontinuous or discontinuous easements. O'Rorke v. Smith, 11 R. I. 259, 23 Am. Rep. 440;Hoffman v. Shoemaker, 69 W. Va. 233, 71 S. E. 198,34 L. R. A. (N. S.) 632; Parsons v. Johnson, supra; Fetters v. Humphreys, 19 N. J. Eq. 471; Morgan v. Meuth, 60 Mich. 238, 27 N. W. 509;Zemon v. Netzorg, 247 Mich. 563, 226 N. W. 242; Gale Easements (10th Ed.) p. 30; Washburn's Easements and Servitudes (4th Ed.) p. 107.

The distinction between easements which are apparent and continuous and those which are not apparent and noncontinuous is completely established by the adjudicated cases. The former pass on the severance of the two tenements as appurtenant without the use of the word ‘appurtenance,’ but the latter do not pass unless the grantor uses language in the conveyance sufficient to create the easement de novo. Fetters v. Humphreys, supra; Parsons v. Johnson, supra; Morgan v. Meuth, supra; Zemon v. Netzorg, supra.

A continuous easement is one, say the authorities, which may be enjoyed without any act on his part, as a waterspout which discharges the water whenever it rains-a drain by which surface water is carried over land-windows through which light and heat enter, etc. A non-continuous easement is one to the enjoyment of which the act of the party is essential, and of this class a way is the most usual. Lampman v. Milks, 21 N. Y. 505; Polden v. Bastard, 1 Q. B. 156; Providence Tool Co. v. Corliss Steam Engine Co., 9 R. I. 564;Elliott v. Rhett, 5 Rich. (S. C.) 405, 57 Am. Dec. 750;Denton v. Leddell, 23 N. J. Eq. 64; Morgan v. Meuth, supra; Zemon v. Netzorg, supra.

The quality or characteristic of continuousness does not belong to a right of way. Such an easement is not self-operating. It is only a place in which its owner operates. Hoffman v. Shoemaker, supra.

It has no existence during the continuance of unity of seizin, and upon severance of the tenements does not pass unless it is a way of necessity or the operative words of the conveyance are sufficient to grant it de novo. 11 Viner's Abr. (2d Ed.) §§ 446-449; Worthington v. Gimson, 2 El. & El. 616; Pearson v. Spencer, 1 Best & S. 571; Dodd v. Burchell, 1 Hurl. & C. 113; Stuyvesant v. Woodruff, supra; Grant v. Chase, 17 Mass. 443, 9 Am. Dec. 161; Michelet v. Cole, supra.

The decided weight of authority, both English and American, is to the effect that an easement not of strict necessity will not pass by implied grant unless it be apparent and continuous. Bonelli Bros. v. Blakemore, 66 Miss. 136, 5 So. 228,14 Am. St. Rep. 550; Zemon v. Netzorg, supra.

No implication of a grant of a right of way can arise from proof that the land granted cannot be conveniently occupied without it. Its foundation rests upon necessity, not upon convenience. Milliken v. Denny, 141 N. C. 224, 53 S. E. 867; Dodd v. Burchell, supra; Smith v. Griffin, 14 Colo. 429, 23 P. 905;Carey v. Rae, 58 Cal. 159;Kripp v. Curtis, 71 Cal. 62, 11 P. 879; McDonald v. Lindall, 3 Rawle (Pa.) 492; Cooper v. Maupin, 6 Mo. 624, 35 Am. Dec. 456.

As said in Covell v. Bright, 157 Mich. 419, 122 N. W. 101, 103: ‘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. 14 Cyc. 1169; Carbrey v. Willis, 7 Allen (Mass.) 364, 83 Am. Dec. 688;White v. Chapin, 97 Mass. 101;Crosland v. Rogers, 32 S. C. 130, 10 S. E....