Howell v. Estes

• Decision Date: 09 November 1888
• Citation: 12 S.W. 62
• Parties: HOWELL <I>v.</I> ESTES.
• Court: Texas Supreme Court

12 S.W. 62

HOWELLv.

ESTES.

Supreme Court of Texas.

November 9, 1888.¹

Error from district court, Collin county; RICHARD MALTBIE, Judge.

Garnett & Muse, for plaintiff in error. K. R. Craig, for defendant in error.

GAINES, J.

Daniel Howell, being the owner of certain contiguous business lots in the city of McKinney, constructed upon two of them two brick buildings, each two stories in height, with a common or party wall between them. The lower story in each building was designated and used as a mercantile store-house. In the upper stories offices were constructed, which were leased to professional men. The upper rooms of the two buildings were reached by a stairway, which was attached to the partition wall, and opened upon the street or public square in front of the structure. The stairway was, however, wholly within one of the buildings, and upon the lot upon which that building was situated. Daniel Howell died, having made his will, by which he devised the building containing the stairway to his son, the plaintiff in error, and the other to his daughter, Mrs. Estes, whose title so acquired defendant in error now has. The plaintiff in error having denied the use of the stairway as an approach to the upper rooms of the other building, this suit was brought to enjoin him from interfering with the free use of the stairway by defendant in error and his tenants; and upon final hearing a perpetual injunction was granted.

The facts stated are substantially the facts alleged in the petition and found by the court. All the errors assigned present practically the same question: Did the use of the stairway, as appurtenant to the building, pass, by the devise of Daniel Howell, to his daughter? There is no statement of facts in the record, but the court found, in effect, that the stairway was not an absolute necessity to the use of the upper rooms in the other building; that, at an expense of $50, a stairway could be constructed in that building, which would be more convenient to the use of the upper rooms, but which would be a material detriment to the use of the storeroom below. Upon the precise point thus presented there is some conflict of authority. Counsel for plaintiff in error insist that while the title to both houses was in Daniel Howell there could be no servitude, and that by the devise no servitude passed by implication except such as is absolutely necessary to the enjoyment of the property conveyed. Upon the first proposition there is no conflict of authority. The principle is elementary that, to constitute an easement, the dominant and the servient estates must be held by different owners; and when the owner of an estate enjoys an easement over another, and acquires title to the latter, the easement is thereby extinguished. The supreme court of Massachusetts also hold that, in order to create an easement by implication, when the title to the two parcels is severed by grant or otherwise, it must be strictly necessary to the enjoyment of the estate in favor of which it is claimed; and that if another means can be provided equally beneficial, without unreasonable labor and expense, no easement will pass. Randall v. McLaughlin, 10 Allen, 366; Carbrey v. Willis, 7 Allen, 364; Buss v. Dyer, 125 Mass. 287.

But there is another view of this subject: "Strictly speaking, a man cannot subject one part of his property to another by an easement, for no man can have an easement on his own property; but he obtains the same right by the exercise of another right, — the general right of property; but he has not thereby permanently altered the quality of two parts of his heritage; and if, after the...