Cadwalader v. Bailey

• Court: Rhode Island Supreme Court
• Writing for the Court: TILLINGHAST, J.
• Citation: Cadwalader v. Bailey, 17 R.I. 495, 23 A. 20, 14 L.R.A. 300 (R.I. 1891)
• Decision Date: 28 September 1891
• Parties: CADWALADER v. BAILEY et al.

23 A. 20

17 R.I. 495

CADWALADER

v. BAILEY et al.

Supreme Court of Rhode Island.

Sept. 28, 1891.

Bill in equity by John Cadwalader against W. E. Bailey et al. for specific performance of a conveyance of land, and for on injunction against interfering with certain alleged rights of complainant thereunder. Bill dismissed.

Arnold Green, for complainant.

William P. Sheffield and Francis B. Peckham, for respondents.

TILLINGHAST, J. This is a bill in equity brought by John Cadwalader, of Philadelphia, in the state of Pennsylvania, against William Easton Bailey and others, devisees under the will of Joseph I. Bailey, and the heirs at law of Alfred Smith, to have the respondents enjoined from violating a covenant contained in a deed from the said Joseph I. Bailey and Alfred Smith to George Cadwalader, dated October 15, 1852. The bill shows that at the time of the making of said deed the said Joseph I. Bailey and the said Alfred Smith were seised and possessed, as tenants in common in fee-simple, of a certain tract of land situate in the south-eastern part of the then town of Newport, which tract included the land described in and conveyed by the deed aforesaid, and also included Bailey's Beach, so called; and that, being so seised and possessed, they executed and delivered to said George Cadwalader said deed of October 17, 1852. That, in and by said deed, the said Bailey and Smith conveyed to the said George Cadwalader, to him and to his heirs, certain land therein described, "together with a right to place a bathing-car, not to exceed eight feet by six in size, on the east half of the Bailey beach, to be placed so as not to interfere with any rights the Olyphant farm may have to take sand or sea-weed from said beach, with the rights to use said beach for the purpose of bathing." And that in and by said deed the said Bailey and Smith covenanted as follows: "And we, the said Joseph I. Bailey and Alfred Smith, for ourselves, our heirs, executors, and administrators, do hereby covenant to and with the said George Cadwalader, his heirs and assigns, that no building, excepting bathing-cars, shall ever be placed upon the marsh or beach called 'Bailey Beach;' that no building shall ever be placed to the westward of a line drawn southerly from Bellevue street, parallel to and distant five hundred and thirty-one feet westerly from the Ledge road, and that none shall be placed on a knoll overlooking said beach, and just north of the lower end of Bellevue street; and, further, that we will not, nor shall any person claiming under us, or by our authority, go upon the east half of the said Bailey beach for the purpose of collecting, securing, or taking away any sand or sea-weed from said beach between the hours of sunrise and ten o'clock a. m., during the months of July, August, and September in each and every year, nor permit any act or thing to be done which might reasonably obstruct the free use and enjoyment of said beach for bathing." The bill further shows that the said George Cadwalader entered upon and took possession of the land to him conveyed, and there afterwards, on the 18th day of August, 1864, by deed duly executed, sold and conveyed to one William W. Tucker, his heirs and assigns, the land which the said George Cadwalader had received as grantee in the said deed of October 17, 1852; but that the said deed from Cadwalader to Tucker contains the clause: "It is understood and agreed that the grantor reserves to himself, his heirs and assigns, the covenants and stipulations contained in a deed from J. I. Bailey and A. Smith, dated October 15, 1852, against building on certain sites near the bathing beach, and the right of bathing on said beach." The bill further shows that the respondents are now seised and possessed of said marsh or beach called "Bailey's Beach," and of the land adjacent thereto, as heirs of the said Bailey and Smith, both of whom are deceased, or as heirs or devisees of the said Bailey, and as heirs of the said Smith, and have been so seised and possessed since the deaths, respectively, of said Bailey and of said Smith; that the said George Cadwalader died February 3, 1879, testate, leaving his wife, Frances Cadwalader, his sole devisee and legatee; that she died testate, January 9, 1880, leaving the complainant, John Cadwalader, her residuary devisee and legatee. The bill further shows that the respondents, notwithstanding said covenants in said deed of October 15, 1852, contained, did, in the year 1890, erect, on the marsh or beach called "Bailey's Beach," a permanent building of large size, and not bathing-cars, which building was placed, and is by the respondents still maintained, on said marsh or beach, to the detriment of the complainant, and in violation of his rights under the said covenants, and without his consent, and in defiance of his protests. The prayer of the bill is that the covenants contained in said deed of October 17, 1852, may be declared valid and existent obligations upon the respondents: that they may be required to make specific performance thereof; that said covenants may be declared in favor of the complainant, his heirs and assigns, as valid restrictions upon said marsh and beach; and for an injunction. A plat of the premises is attached to and made part of said bill.

The answer admits the material allegations in the bill to be true, except as to any wrongful or unlawful acts therein charged; but avers and sets up that the complainant has no title to the easements granted in and by said deed of October 15, 1852—first, because the same were wholly severed and extinguished by the reservation in the deed from George Cadwalader to said William W. Tucker of August 18, 1864; or, second, because said easments were appurtenant to the land conveyed by said deed to Cadwalader, of which land no portion is owned or possessed by the complainant; or, third, because said easements were not appurtenant to said land, (nor any land,) but were rights in gross belonging to said George, and not assignable nor inheritable nor devisable. A ground plan of the building is attached to and made part of the answer.

The case is before us on bill and answer, together with such evidence as to the situation and circumstances of the premises as the court was able to obtain from a personal view of the premises, which was had at the request of the parties, and from the statements of counsel. The grounds upon which the complainant bases his claim to the relief prayed for are—First, that the incorporeal rights given to George Cadwalader were not necessarily rights appurtenant to the land conveyed; second, that, if appurtenant, they were not extinguished by severance: and, third, that if they were rights in gross, and personal to said Cadwalader, they were not extinguished by his death.

The first question which arises, therefore, is whether the rights granted to the said George Cadwalader by the deed of October 15, 1852, constituted an appurtenant easement to the land conveyed, or an easement in gross. An appurtenant easement is an incorporeal right which, as the term implies, is attached to and belongs with some greater or superior right,— something annexed to another thing more worthy, and which passes as incident to it. It is a species of what the civil law calls a "servitude." Bouv. Inst, note 1600 et seq.; 3 Kent, Comm. 344. It is incapable of existence separate and apart from the particular messuage or land to which it is annexed, there being nothing for it to act upon. In order to the existence of an easement of this sort, there must be two distinct tenements,—the dominant, to which the right belongs, and the servient, upon which the obligation rests. Wolfe v. Frost. 4 Sandf. Ch. 72; Wagnerv. Hanna, 38 Cal. 111, 116. In Keppell v. Bailey, 2 Mylne. & K. 517, the subject of covenants running with the land was fully considered by Lord Chancellor Brougham. He there says: "The covenant [that is, such as will run with the land] must be of such a nature as to inhere in the land, to use the language of some cases; or it must concern the demised premises, and the mode of occupying them, as it is laid down in others; 'it must be quodam modo, annexed and appurtenant to them,' as one authority has it; or as another says, 'it must both concern the thing demised, and tend to support it, and support the reversioner's estate.'" See, also, Spencer's Case, 5 Coke, 16,1 Smith, Lead. Cas. 137-147. An easement in gross is a mere personal interest in the real estate of another, and is not assignable or inheritable. Washb. Easem. (4th Ed.) 12. Chancellor Kent, in speaking of such an easement, says: "It dies with the person, and it is so exclusively personal that the owner of the right cannot take another person in company with him." 3 Kent, Comm. 420. See, also, Ackroyd v. Smith, 10 C. B. 164; Garrison v. Rudd, 19 Ill. 558; Post v. Pearsall, 22 Wend. 425, 432; Woolr. Ways, 20; 2 Bl. Comm. 35; Boatman v. Lasley, 23 Ohio St. 614. Whether an easement in a...