Hawley v. McCabe

• Decision Date: 08 November 1933
• Citation: 117 Conn. 558,169 A. 192
• Parties: HAWLEY v. McCABE.
• Court: Connecticut Supreme Court

169 A. 192

117 Conn. 558

HAWLEY v. McCABE.

Supreme Court of Errors of Connecticut.

November 8, 1933

Appeal from Superior Court, Fairfield County; John A. Cornell Judge.

Action by David H. Hawley against Edythe M. McCabe for declaratory judgment that plaintiff had the right of way over land of defendant. On trial to the court, judgment was entered decreeing that plaintiff had right of way by prescription over defendant's land for limited purpose of drawing wood, but that defendant's land was not subject to right of way by necessity for all purposes in favor of plaintiff's land, and plaintiff appeals.

No error.

George E. Beers, of New Haven, Samuel A. Davis, of Danbury, and William L. Beers, of New Haven, for appellant.

William Hanna, of Danbury, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

BANKS Judge.

Plaintiff owns a tract of land in Danbury bounded on the east by land of the defendant known as the meadow lot, and on the south by other land of the defendant known as the Judson lot. Both of defendant's lots abut on the east upon the highway, and the plaintiff claims a right of access to the highway across the Judson lot by virtue of a right of way by prescription and also claims a right to such access across the meadow lot by virtue of a right of way of necessity.

The court found that the plaintiff had a right of way by prescription over the Judson lot for the limited purpose of drawing wood, and error is assigned in the overruling of plaintiff's claim that he had acquired by prescription a right of way over that tract for all purposes. It appears from the finding that about twenty-five years ago a sawmill was established on the land now owned by the plaintiff, and slabs and cordwood were carted over the Judson lot, and at all times since plaintiff has owned this land he has carted wood across the Judson lot of the defendant, the passway formed by such use being about eight feet in width and marked by wagon ruts. It is found that neither the plaintiff nor his predecessors in title have made any use of this passway other than thus stated.

It is well settled that, when an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it. The manner of use determines the extent of the presumed grant, which does not extend beyond the user in which the other party has acquiesced. Hart v. Chalker, 5 Conn. 311; Atwater v. Bodfish, 77 Mass. (11 Gray) 150; Bridwell v. Beerman, 190 Ky. 227, 227 S.W. 165; Jones, Easements, § 415; 9 R.C.L. 788; 21 R.C.L. 1235; 19 C.J. 977. The right of way which the court has found in favor of the plaintiff's land over the Judson lot of the defendant is based solely upon the use of the same during the prescriptive period for the limited purpose of drawing wood, and the court did not err in holding that the right acquired was limited to the use of the passway for that purpose.

With reference to the plaintiff's claimed way of necessity over the meadow lot of the defendant, the following facts appear from the finding: This lot and the land of the plaintiff were formerly owned by the plaintiff's mother, Julia A. Hawley. On March 31, 1873, she conveyed the meadow lot to Edward Whaley, the defendant's predecessor in title, and on May 9, 1906, the plaintiff acquired the land now owned by him by deed from the administrator of his mother's estate. The lot deeded to Whaley, and now owned by the defendant, lay between the land retained by Julia A. Hawley, when that conveyance was made, and, the only highway to which the owner of such land had access, and left such owner without access to the highway except by passing over the land so conveyed. At the time of this conveyance, Julia A. Hawley owned no other land over which access could be had to the highway from the land so retained by her, and the plaintiff, as her successor in title, has never owned any other land over which such access could be had. The trial court concluded that upon the conveyance to Whaley a right of way of necessity to pass over the land conveyed to him and now owned by the defendant arose in favor of the land now owned by the plaintiff, and passed to him by the conveyance from the administrator of his mother's estate. It held, however, that the defendant was a bona fide purchaser for value without notice, actual or constructive, of any easement affecting her property, and that it was not therefore subject to the exercise of such way of necessity while owned by her. The correctness of this conclusion is the question chiefly stressed by the plaintiff upon this appeal.

The plaintiff contends that the defendant took with notice of the right of way of necessity from the record of the deeds in her chain of title when read in connection with the physical conditions, including the fact that the land retained had no outlet to the highway except across the land conveyed in the deed from Julia A. Hawley to Whaley, defendant's predecessor in title. The court has found that at no time since the deed to Whaley has the land deeded to him been used by the plaintiff or his predecessor in title to go from the plaintiff's land to the highway, and that, when the defendant purchased the meadow lot, there were no physical evidences thereon of the use or existence of any right of way over it. It also found, after an inspection of the premises that, at the time defendant purchased the properties now owned by her, there was nothing in the relative positions or physical characteristics of the several parcels to indicate that an owner of the plaintiff's land was without access to the highway other than over the defendant's meadow lot, that the presence of stone walls inclosing that lot conveys an opposite impression, and that the...