German Sav. & Loan Soc. v. Gordon

• Citation: 102 P. 736,54 Or. 147
• Parties: GERMAN SAVINGS & LOAN SOCIETY v. GORDON.
• Decision Date: 29 June 1909
• Court: Oregon Supreme Court

102 P. 736

54 Or. 147

GERMAN SAVINGS & LOAN SOCIETY v. GORDON.

Supreme Court of Oregon

June 29, 1909

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Suit by the German Savings & Loan Society against George W. Gordon. Decree for complainant, and defendant appeals. Affirmed.

The following is a plat showing the property and way in controversy:

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This is an appeal by the defendant, George W. Gordon, from a decree enjoining him from obstructing an alleged private way over a part of his land on which the plaintiff, the German Savings &amp Loan Society, a private corporation, asserts that it has an easement, as an incident to its ownership of adjoining land. The facts are that on January 30, 1891, Mrs. Leaner Gray being the owner of lots 1, 2, 7, and 8, in block 37, of Caruther's addition to Caruther's addition to the city of Portland, conveyed to Gordon the south 50 feet of lot 7, reserving to herself the north 5.125 feet thereof. Lot 2 lies immediately south of lot 1, and both are bordered on the east by Hood street. Lots 7 and 8 join lots 2 and 1 respectively, and extend west to Corbett street. Gordon, soon after purchasing his land, built thereon a house, the north line of which was near his north boundary. Mrs. Gray was then living on lots 1 and 2 in a house which fronted east. She built on the south line of lot 8 a picket fence, between which and Gordon's house she caused to be constructed a passageway from Corbett street to the rear of her building. The entrance to the passageway was originally indicated by a gate, and, as the lots were somewhat higher than the street grade, three ascending steps led from the gate to a two-board walk which extended eastward across the lot past Gordon's house, at the end of which walk were five descending steps. Gordon built a fence from the northwest corner of his house along his boundary, to Corbett street, so that the passageway was inclosed to the rear of his house, but east thereof the walk was not fenced. The gate referred to when closed completed the angle and connected the south line of Mrs Gray's fence with the west line of Gordon's fence. Such was the condition of the land described September 17, 1892, when Mrs. Gray, in order to secure the payment of $6,600, executed to the plaintiff a mortgage of lots 1, 2, and 8, in block 37 of the addition specified, together with the appurtenances, etc. Default having been made in the payment of an installment of the debt, the mortgage was foreclosed, the premises were sold to the plaintiff, the sale was confirmed, and a sheriff's deed was executed to the purchaser November 27, 1896. The mortgagor vacated the premises, and, the plaintiff taking possession thereof, its tenants continued to use the passageway until it was closed by Gordon, to whom Mrs. Gray on January 25, 1906, conveyed the north 5.125 feet of lot 7. To restrain such obstruction, this suit was instituted, resulting in a decree as hereinbefore stated.

A.T. Lewis, for appellant.

Milton W. Smith, for respondent.

MOORE, C.J. (after stating the facts as above).

The question to be considered is whether or not a right to use the passageway was impliedly granted by the mortgage, so that, upon the foreclosure thereof and a sale and conveyance of the premises, an easement became appurtenant thereto. An easement is a right in one person to do certain acts on another's land, or to compel such other to refrain from doing certain acts thereon. Tiffany, Real Prop. p. 677. As Mrs. Gray placed the stairs and walk on her own land, the legal title to which she retained for that purpose, her authority to use the way cannot be denominated an easement within the strict definition of that word. The owner of an entire tract of land, or of two or more adjoining parcels, may so employ a part thereof as to create a seeming servitude in favor of another portion to which the use becomes appurtenant. Lampman v. Milks, 21 N.Y. 505. Such use is tantamount to an easement at will, so long as the unity of ownership continues. Elliott v. Rhett, 5 Rich.Law (S.C.) 405, 57 Am.Dec. 750, 759. The servitude referred to is known as a quasi easement. Tiffany, Real Prop. § 315. "The servitude of the civil law," says Mr. Chief Justice Lewis, in Kieffer v. Imhoff, 26 Pa. 438, 442, "has a much wider signification than the easement of the common law, comprehending many rights, which in the latter fall under the division of profits a prendre." Though there is a distinction between the terms adverted to, the word "servitude" where employed in this opinion will be used as synonymous with the phrase "quasi easement." When the quasi dominant tenement is conveyed, without an express reference in the deed to the servitude, the quasi easement is occasionally held to have been impliedly granted, and at other times not to have passed, depending upon the nature and character of the use imposed upon the quasi servient tenement by invoking the presumption that the parties contracted with reference to the conditions of the property at the time of the sale, and that the grantor intended to convey a right to use the quasi easement, and that the grantee reasonably expected to take and hold such right. 10 Am. & Eng.Ency.Law (2d Ed.) 422; John Hancock M.L. Ins. Co. v. Patterson, 103 Ind. 582, 2 N.E. 188, 53 Am.Rep. 550.

In Phillips v. Phillips, 48 Pa. 178, 86 Am.Dec. 577 580, in speaking of a quasi easement, which survives a severance of the tenements by a conveyance of the quasi dominant estate, and which servitude passes by implied grant, Mr. Justice Thompson observes: "It is not to be understood by this doctrine that any temporary convenience adopted by the owner of property is within it. By all the authorities it is confined to cases of servitudes of a permanent nature, notorious, or plainly visible, and from the character of which it may be presumed that the owner was desirous of their preservation as servitudes, evidently necessary to the convenient enjoyment of the property to which they belong, and not for the purpose of mere pleasure." The courts of the common law, borrowing the terms from the Code of France, recognize, inter alia, the classification of servitudes into continuous and discontinuous, in defining which a text-writer says: "Continuous are those of which the enjoyment is or may be continual without the necessity of any actual interference by man as a water spout or a right of light or air. Discontinuous are those the enjoyment of which can be had only by the interference of man, as rights of way, or a right to draw water." Washburn, Ease. (2d Ed.) *13. "The test of continuousness," says a text-writer, "is that there is an alteration or arrangement of a tenement which makes one part of it dependent in some measure upon another. This alteration or arrangement must be intended to be permanent in its nature." Jones, Ease. § 143. It is generally held that, upon the conveyance of a quasi dominant tenement, a quasi easement appurtenant thereto which is continuous passes by implied grant. 14 Cyc. 1168. Where the owner of land makes one part of it servient to another by an obvious and reasonably permanent alteration, and conveys the dominant part, his grantee takes such portion benefited by the easement which the change effected. Cihak v. Klekr, 117 Ill. 643, 7 N.E. 111; Kelly v. Dunning, 43 N.J.Eq. 62, 10 A. 276; Simmons v. Cloonan, 81 N.Y. 557. An author states this legal principle as follows: "The rule is general that, where one conveys a part of his estate, he impliedly grants all those apparent or visible easements upon the part retained which were at the time used by the grantor for the benefit of the part conveyed and which are reasonably necessary for the use of that part." Jones, Ease. § 129. It is held by some of the state courts of last resort that the grantee of a quasi dominant tenement does not take by implied grant a continuous and apparent quasi easement, except in cases where such servitude is a necessity. 14 Cyc. 1168. The weight of authority, however, supports the doctrine that "reasonable necessity" is the proper guage for determining whether or not the servitude passes by implied grant. 10 Am. & Eng.Ency.Law (2d Ed.) 424; Tiffany, Real Prop. § 317. The rule generally obtains that a discontinuous quasi easement does not pass upon a...