Howley v. Chaffee

• Decision Date: 23 January 1915
• Citation: 88 Vt. 468,93 A. 120
• Parties: HOWLEY v. CHAFFEE et al.
• Court: Vermont Supreme Court

93 A. 120

88 Vt. 468

HOWLEY

v. CHAFFEE et al.

Supreme Court of Vermont. Rutland.

Jan. 23, 1915.

Appeal in Chancery, Rutland County; Frank L. Fish, Chancellor.

Suit by Patrick F. Howley against George T. Chaffee and others. From a decree for complainant against Chaffee only, he appeals. Reversed and cause remanded, with directions to dismiss the bill.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

F. S. Platt, W. B. C. Stickney, and T. W. Moloney, all of Rutland, for appellant. J. C. Jones and Charles L. Howe, both of Rutland, for appellee.

POWERS, C. J. George Richardson in his lifetime owned a large parcel of land on the south side of Center street in the city of Rutland. He also owned a 12-foot right of way to the east end of this land from Wales street, which crosses Center street east of this property. On May 23, 1883, Richardson conveyed a part of this land to one Martell. The land so conveyed, hereinafter called the Martell lot, is in the northeast corner of the original parcel, and is about 35 feet wide on Center street and 80 feet deep. On December 11, 1906, Addie Richardson, who became the owner of the remaining property at George Richardson's decease, conveyed to the defendant Chaffee all that remained of the original parcel, including the right of way, except a piece next west of the Martell lot. The piece so excepted has a frontage on Center street of 55 feet and is 80 feet deep. The land conveyed to Chaffee is irregular in shape, as will hereinafter appear. On July 18, 1912, Addie Richardson conveyed to the orator the land excepted from the deed to Chaffee, and the same is hereinafter called the Howley lot. At the time Mrs. Richardson deeded to Chaffee, the buildings and structures standing on the premises mentioned were located as follows: On the Martell lot was a brick block fronting on Center street, with a wooden addition on the rear. This structure occupied the whole width of the lot, and all of its depth, except about 7 or 8 feet. This left an open space between the Martell building and the south line of the lot about 35 feet east and west, and about 8 feet north and south. On the Howley lot was a brick block fronting on Center street. This block was 55 feet wide and 50 feet deep. It occupied the entire frontage of the lot, and had a wooden addition on the rear at the southeast corner. An old barn, hereinafter called the north barn, stood on the Howley lot in the rear of the block just mentioned. This barn extended practically (if not quite) to the west line of the Howley lot, and practically (if not quite) to the south barn, hereinafter described. There was an open space between the north barn and the Howley block of about 4 feet, extending from the west line of the lot to a point about 10 feet from the east line thereof, where it came to the wooden addition already referred to. This addition completely filled the space between this barn and the Martell lot to a point as far south as the addition of the Martell block extended. And from that point a platform extended south to the south line of the Richardson land, completely filling the space to the south barn and the east line of the Howley lot This wooden addition to the Howley block was used for a harness shop. It thus appears that the Howley lot was completely covered with structures, except for the four-foot space above mentioned. On the land conveyed to Chaffee was a livery stable fronting on Center street, occupied by one Morse as tenant. This stable was a rectangular, wooden building, extending from the Howley block to the west and south lines of the west part of the Chaffee lot. The Chaffee lot also included a strip of land lying south of the Howley and Martell lots and some land extending further south to the Bardwell stables, so-called. So the deed to Chaffee included eight or nine feet off the south side of the north barn and the platform at its east end. South of this barn, and on the Chaffee lot, stood another old barn, hereinafter called the south barn. This came nearly to the west line of the Chaffee lot at that point, and quite to the south line against the Bardwell stable. It extended east to a point about as far as the middle of the Martell lot, and had a shed attached at its southeast corner. There was an open space on the Chaffee lot in the rear of the Martell lot, extending from the east side of the platform to the east line of the lot, and the east part of this space extended south along the east end of the south barn to the shed mentioned. The right of way from Wales street ran to the east line of this open space. It thus appears that the Chaffee lot was fully covered with buildings and structures, except this open space east of the platform and the south barn. By the deed to Chaffee, a ten-foot open space across the rear of the Howley lot was stipulated for, to be used for a common passageway, and for light, air, and fire escapes for both parties. The Howley block was divided on Center street into three stores and a stairway leading to the upper floors. The stores had basements, which opened into the four-foot space above mentioned. Ever since this block was built (1885), Richardson and his tenants have continuously used the right of way from Wales street. Their teams would come in from Wales street, swing around the northeast corner of the south barn to the platform above mentioned. This is as far as teams could go, as the north barn, the harness shop, and the platform blocked the way. The evidences of this use of a way by the occupants of the Howley block were plain to be seen upon the ground. Some use of the open space on the rear of the Martell lot was also made by these teams, especially in turning around, as the space next to the platform and on the Chaffee lot was only about ten feet wide. There was no opening in either the north or east walls of either of the barns, except a door in the east end of the south barn nearly or quite opposite the right of way to Wales street. Notwithstanding the finding that at the times the Chaffee and Howley deeds were given, the Howley lot was fully covered with buildings and structures, except as noted, and teams could only go as far west as the platform, the chancellor finds that there was access to the rear of the Howley block, and the basements therein, by those on foot, and that a constant use was made of this way out from the basements. If this be so, such access must have been through the harness shop, for, as we have seen, there was no opening in the east or north walls of the north barn, and this barn and the harness shop filled the space on the Howley lot. The lease of the livery stable and old barns did not expire until April 1, 1913, so Chaffee did not get possession of these buildings until that time. Immediately thereafter he began tearing down the old buildings to prepare the lot for an opera house. The chancellor reports that access to the rear of the Howley block over the right of way to the Chaffee lot, and thence around the corner of the south barn as described is—

"reasonably necessary for the full, convenient, and comfortable use and enjoyment of said block, and would add to the value of said block and would materially benefit it."

The decree below was for the orator and against Chaffee only. The latter appealed.

The defendants treat the orator's suit as a claim of a way of necessity, so-called, and rely upon Dee v. King, 73 Vt. 375, 50 Atl. 1109, wherein it is said that such a way is called into existence in cases of necessity only, and that mere convenience, however great, will not suffice.

For present purposes we may assume that the rule regulating such ways is correctly stated in Willey v. Thwing, 68 Vt. 128, 34 Atl. 428, in the following quotation:

"If A. conveys land to B., to which B. can, have access only by passing over other land of A., a way of necessity passes by the grant. If A. conveys land to B., leaving other land of A., to which he can have access only by passing over the land granted, a way of necessity is reserved in the grant."

It thus appears that in the matter of these ways implied grants and implied reservations stand alike. The foundation of this rule regarding ways of necessity is said to be a fiction of law, by which a grant or reservation is implied, to meet a special emergency, on grounds of public policy, in order that no land be left inaccessible for the purposes of cultivation. Buss v. Dyer, 125 Mass. at 291. It is apparent that the case in hand has no standing under this rule, for the orator's land fronts on one of the principal streets of the city, and is, of course, accessible therefrom. The claim of the orator is in fact founded upon a different, though somewhat related ground—a ground sometimes spoken of in the books as the doctrine of "visible servitudes," sometimes as the doctrine of "easements arising from severance with apparent benefit existing," and sometimes as the doctrine of "quasi easements." Much confusion of judicial thought has resulted from a failure to distinguish between ways of necessity and ways arising under this latter doctrine—a confusion, it must be admitted, from which our own cases have not wholly escaped.

With the character and extent of implied grants, we now have nothing to do. We are here only concerned with determining the circumstances which will give rise to an implied reservation. On this precise question the authorities are in conflict Courts of high standing assert that the rule regarding implied grants and implied reservation of "visible servitudes" is reciprocal, and that it applies with equal force and in like circumstances to both grants and reservations. But upon a careful consideration of the whole subject, studied in the light of the many cases in which it is discussed, we are convinced that there is a clear distinction between implied grants and implied reservations, and that this distinction is well founded in principle and well...