Harry E. Mchugh, Incorporated, a Corp. v. Haley
| Decision Date | 18 August 1931 |
| Docket Number | 5902 |
| Citation | 237 N.W. 835,61 N.D. 359 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ramsey County, Grimson J.
Affirmed.
F T. Cuthbert, for appellant.
An instrument filed for record is not considered "recorded" until every requirement of law has been complied with including the entries required to be made on the indexes. Mangold v. Barlow, 61 Miss. 597; Ritchie v. Griffiths (Wash.) 12 L.R.A. 384, 22 Am. St. Rep 155.
A grantee who deposits his deed for record discharges his duty of notice to the public and his title cannot be prejudiced through the fault alone of the recording officer. Barney v. McCarthy, 15 Iowa 519; Cady v. Purser, 131 Cal. 552, 63 P. 844; Neslin v. Wells, 104 U.S. 428; Terrell v. Andrew County, 44 Mo. 309; Sawyer v. Adams (Vt.) 30 Am. Dec. 459; N.Y.L. Ins. Co. v. White, 17 N.Y. 469; Gillig v. Maass, 28 N.Y. 191; Turman v. Bell, 54 Ark. 273, 26 Am. St. Rep. 35; Oats v. Walls, 28 Ark. 244; Parret v. Shaubhut, 5 Minn. 323; Pringle v. Dunn, 37 Wis. 464; Chatham v. Bradford, 50 Ga. 692; Schell v. Stein, 76 Pa. 400, 30 Am. Dec. 464; White v. Himmelberger-Harrison Lumber Co. 240 Mo. 13, 42 L.R.A.(N.S.) 151, 139 S.W. 553; Jennings v. Wood, 20 Ohio 261; McLarren v. Thompson, 40 Me. 284; 23 R.C.L. 224; Frost v. Beekman, 1 Johns. Ch. 299; Jones v. McNarrin, 68 Me. 334, 28 Am. Rep. 66; Curtis v. Lyman, 24 Vt. 338, 58 Am. Dec. 175; Ildvedsen v. First State Bank, 24 N.D. 227, 139 N.W. 105; McCoy v. Davis, 38 N.D. 328, 164 N.W. 951; Hanson v. Johnson, 42 N.D. 431, 177 N.W. 452; First Nat. Bank v. Casselton Realty & Invest. Co. 44 N.D. 353, 175 N.W. 72; Eynon v. Thompson, 48 N.D. 390, 184 N.W. 878; Rolette County Bank v. Hanlyn, 48 N.D. 72, 183 N.W. 260.
Notice of the existence of an easement by implication must be open and above board readily visible to the purchaser, must be in use and continuous and of such a nature as to indicate a right in an adjoining property. Lampman v. Milks, 21 N.Y. 505; Griffiths v. Morrison, 106 N.Y. 165, 12 N.E. 580; Whyte v. Builders League, 164 N.Y. 429, 58 N.E. 517; Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80; Insurance Co. v. Patterson, 103 Ind. 582, 53 Am. Rep. 550, 2 N.E. 188; Lammott v. Ewers, 106 Ind. 310, 55 Am. Rep. 746, 6 N.E. 636; Blake v. Boie (Colo.) 8 L.R.A. 418, 88 P. 470; Sloat v. McDougall, 30 N.Y. 912, 9 N.Y.S. 631; Treadwell v. Inslee, 120 N.Y. 458, 24 N.E. 651; Taggart v. Warner, 83 Wis. 1, 53 N.W. 33; Smith v. Lockwood (Minn.) 110 N.W. 980; Rock Island & P.R. Co. v. Dimick, 19 L.R.A. 109; Whiting v. Gaylord, 66 Conn. 337, 50 Am. St. Rep. 87; Powers v. Heffernan, 122 Am. St. Rep. 207; Manbeck v. Jones, 190 Pa. 171, 42 A. 536; Walker v. Clifford, 128 Ala. 67, 86 Am. St. Rep. 74, 29 So. 588; Fremont, etc. R.R. Co. v. Gayton, 67 Neb. 263, 93 N.W. 163; Butterworth v. Crawford, 46 N.Y. 349, 7 Am. Rep. 353; Taylor v. Mallard, 9 L.R.A. 667; Edwards v. Haeger, 54 N.E. 176; Roe v. Walsh, 135 P. 1032; 27 R.C.L. p. 805; 19 C.J. 939.
Traynor & Traynor, for respondent.
Index to record of deed is not essential to make record effective as constructive notice to subsequent purchasers. If such purchaser has been misled to his injury by the recorder's neglect to make index, his remedy must be against the recorder. Green v. Carrington, 16 Ohio St. 548, 91 Am. Dec. 103; 39 Cyc. 1738, 1739; Davis v. Whitaker, 114 N.C. 279, 41 Am. St. Rep. 793; Schouweiler v. McCaull (S.D.) 99 N.W. 95; Farmers Bank v. Raugust, 42 N.D. 503, 173 N.W. 793; McGee v. Marshall, 54 N.D. 584, 210 N.W. 521; Parrish v. Mahany (S.D.) 73 N.W. 97; Citizens' Bank v. Shaw, 84 N.W. 779; Shelby v. Bowden (S.D.) 94 N.W. 416; Board of Commissioners v. Babcock, 5 Or. 472, 38 P. 472; Covington v. Fisher, 22 Okla. 207, 97 P. 515; Lincoln Bldg. & Sav. Asso. v. Hass, 10 Neb. 581; Perkins v. Strong, 22 Neb. 725, 36 N.W. 292; 1 Jones, Mortg. 7th ed. 808-812.
Open and notorious possession and occupancy of real property by another than his grantor is sufficient to charge a purchaser of real estate with knowledge of the rights of occupant thereof. Earnest v. First Nat. Bank, 56 N.D. 309, 217 N.W. 169; 27 R.C.L. 729; Indiana R. Co. v. McBroom (Ind.) 15 N.E. 831; Paul v. Railroad Co. 51 Ind. 527; Valentine v. Long Island R. Co. (N.Y.) 79 N.E. 849; Kramer v. Bryant, 20 Ky. L. Rep. 340; 19 C.J. 939.
The purchaser of an estate which is charged with an easement which is discoverable upon examination, such as an open and visible roadway, takes his title subject to such easement, to the extent his grantor is bound thereby. Murphy Chair Co. v. American Radiator Co. (Mich.) 137 N.W. 791; Rollo v. Nelson (Utah) 26 L.R.A.(N.S.) 315.
An easement is apparent when it may be discovered upon reasonable inspection. Oliver v. McEachran (Wash.) 271 P. 93; DeConly v. Winter Creek Canal Co. (Neb.) 193 N.W. 157; Douglas v. Jordan (Mich.) 205 N.W. 52; Greve v. Caron (Mich.) 206 N.W. 334; Peryer v. Pennock (Vt.) 17 A.L.R. 863, 115 A. 105; Barnes v. Lloyd, 112 Mass. 224; Hingtgen v. Thackery (S.D.) 121 N.W. 839.
The intention to abandon an easement is not to be inferred from the outward and public acts of the owner only, but also from its dealings with relation to its title. Ocean Shore R. Co. v. Spring Valley Water Co. (Colo.) 262 P. 53; Union P.R. Co. v. Wooster (Neb.) 177 N.W. 740.
One who purchases real estate with actual, constructive, or implied notice that it is burdened with an easement in favor of adjoining property takes subject thereto. 8 L.R.A.(N.S.) 418, note; McDougal v. Lame (Or.) 64 P. 864.
Where easement is not openly visible to the purchaser, it must be reasonably necessary. Fremont v. Gayton (Neb.) 93 N.W. 163; Cihak v. Klekr, 117 Ill. 643, 7 N.E. 111; Keifer v. Imhoff, 26 Pa. 438; 19 C.J. 919; Adams v. Gordon (Ill.) 106 N.E. 517; Bailey v. Hennessy (Wash.) 191 P. 863; Butterworth v. Crawford, 46 N.Y. 349, 7 Am. Rep. 353.
This is an action by Harry E. McHugh, Incorporated, a corporation, to quiet title to an easement over property belonging to the defendant and to secure a permanent injunction against interference with the enjoyment thereof. The plaintiff had judgment in the district court and the defendant appeals to this court for a trial de novo.
Prior to 1927 a corporation known as Bovey-Shute & Jackson, Incorporated, was the owner of lots numbered from one to six, inclusive, lots 9 and 10, and the south fifty feet of lots 7 and 8, in block 22, of the original townsite of the city of Devils Lake. In 1918 it secured a franchise permitting the construction and maintenance of a spur track in the alley of this block and extending over the rear or south end of the lots above described, and it entered into a spur track agreement with the Great Northern Railway, binding upon heirs, legal representatives and successors, to permit the railway company to use the track and any extension, connection or diverging spur for the purpose of serving business and industries other than the business and industries of the applicant. Under this franchise and agreement the spur track was constructed. In March, 1927, the plaintiff purchased from Bovey-Shute & Jackson, Incorporated, lots 1, 2, 3, 4, 5 and 6, in block 22, together with an easement over the remainder of the lots for the use of the spur track. The conveyance was made by a warranty deed which contained the following provision after the description of the property conveyed: "Also giving and granting to second party the right to the use, for transportation purposes, of the railroad spur track on the rear of Lots Seven, Eight, Nine and Ten of said Block Twenty-two, in accordance with spur track agreement dated August 19th, 1918, between Bovey-Shute Lumber Company and Great Northern Railway Company; provided the track shall not be used by second party for storage purposes; and provided that first party, its successors or assigns, will not cause the same to be removed or discontinued without the consent of second party." This deed was recorded in the office of the register of deeds of Ramsey County on March 12, 1927, and in the course of a few days it was redelivered to the plaintiff with a certificate thereon certifying to the fact that it had been recorded. At the time of recording it the register of deeds noted it in the numerical index only as against lots 1, 2, 3, 4, 5 and 6, failing to make any notation as against the remaining lots 7, 8, 9 and 10. On July 17, 1928, the defendant Haley purchased from Bovey-Shute & Jackson, Incorporated, and obtained conveyance by warranty deed recorded on the same day, the south or rear fifty feet of lots 7 and 8 and all of lots 9 and 10 in block 22. In purchasing this property the defendant relied on an abstract which failed to show that the lots purchased were affected by the plaintiff's easement, the abstracter, apparently, having been misled by the failure of the register of deeds to make proper notation in the numerical index.
The trial in the district court was concerned with two principal questions: (1) A question as to whether or not the plaintiff's occupancy and use of the premises purchased by it and its limited use or nonuse of the spur track were such as to furnish notice to the defendant of the existence of the easement -- mingled with this is the question as to whether the plaintiff is now precluded to assert its easement as against the defendant on account of conduct which, it is claimed, amounts to an apparent abandonment or waiver. (2) Assuming the defendant not to be chargeable with notice of the plaintiff's easement on account of the appearance of the property and the apparent use or disuse of the track and to be...
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