Dimoff v. Laboroff, 39.

• Decision Date: 07 February 1941
• Docket Number: No. 39.,39.
• Citation: 296 Mich. 325,296 N.W. 275
• Parties: DIMOFF et ux. v. LABOROFF et al.
• Court: Michigan Supreme Court

296 Mich. 325

296 N.W. 275

DIMOFF et ux.

v.LABOROFF et al.

No. 39.

Supreme Court of Michigan.

Feb. 7, 1941.

Suit by Torpa Dimoff and Zoika Dimoff, his wife, against John Laboroff and others, to compel defendants to remove a certain line fence erected between the properties of the parties, and for determination of the question of whether plaintiffs had an easement over a portion of defendants' land. From a decree for plaintiffs, the defendants appeal.

Decree vacated, and plaintiffs' bill of complaint dismissed.

Appeal from Circuit Court, Wayne County, in Chancery; DeWitt H. Merriam, Judge.

Argued before the Entire Bench.

John A. Sunday, of Detroit (Charles A. Lorenzo, of Detroit, of counsel), for appellants.

Charles R. Robertson, of Detroit, for appellees.

McALLISTER, Justice.

Plaintiffs filed a bill in equity to compel defendants to remove a certain line fence erected between the properties of the parties, and for the determination of the question of whether plaintiffs had an easement over a portion of defendants' land. The trial court granted plaintiffs relief, holding that there was an easement by prescription, as well as of necessity.

The parties are owners of adjoining lots in the city of Detroit, each having a frontage of 25 feet. In March, 1888, James Moran was the owner of both lots, then consisting of a single lot of 50 feet in frontage. In 1889 Moran divided this lot into two 25-foot lots, which are the parcels here in controversy. He erected a house on each lot. Between the houses there was approximately a 6-foot strip of land, which during the past 50 years has been used in common by the succeeding various owners of the two houses for the purpose of access to the rear of the lots and for bringing coal and other materials onto the premises. The coal chutes of each house face this passageway. The line between the two properties runs approximately through the center of this 6-foot portion which has been used in the manner above described.

Through mesne conveyances executed by various owners, title to the two lots became vested in Nathan and Dora Daskell in May, 1923. In 1924 the Daskells conveyed one lot to defendants. In 1927 they deeded the other lot to one Bezoff, who conveyed such lot to plaintiffs in 1929. There were no exceptions or reservations in any of the deeds. In February, 1938, defendants completed some building alterations in their house, and erected a fence on the line between the two lots, leaving a space of 37 inches between plaintiffs' house and the fence, and preventing plaintiffs from making use of the entire strip between the houses. Plaintiffs complain that they can no longer bring coal to their cellar by barrow as they have been accustomed to do, because of certain projections of their house and the too-narrow width of the remaining passageway. They claim, therefore, that they are entitled to the use of this 6-foot strip as a way of necessity to their premises, and that there has been a continuous user of this way of access for more than 50 years by all parties owning interests in the lots.

When the two lots became vested in Nathan and Dora Daskell in 1923, any right of easement acquired by previous adjacent owners up to that time became extinguished. The Daskells could not have held hostile adverse possession as against themselves. The union of dominant and servient estates in the same owners extinguishes prior easements. One cannot have an easement in one's own land. Bricault v. Cavanaugh, 261 Mich. 70, 245 N.W. 573;Morgan v. Meuth, 60 Mich. 238, 27 N.W. 509.

In Burling v. Leiter, 272 Mich. 448, 262 N.W. 388, 100 A.L.R. 1312, it was held that no implication of a right of way can...