John G. Nelson v. Arthur Bacon Et Als

• Decision Date: 04 May 1943
• Citation: 32 A.2d 140,113 Vt. 161
• Parties: JOHN G. NELSON v. ARTHUR BACON ET ALS
• Court: Vermont Supreme Court

32 A.2d 140

113 Vt. 161

JOHN G. NELSON v. ARTHUR BACON ET ALS

Supreme Court of Vermont

May 4, 1943

February Term, 1943.

Reservation and Exception of Easements by Deed.

1. A statement in findings of fact that the trier is unable to find that certain buildings now standing are the same as those erected in 1857 is equivalent to a finding that such buildings are not the same as those erected in 1857.

2. The existence of a thing, permanent in its character, once established is presumed to continue thereafter until the contrary is shown.

3. While a presumption of law has no probative quality, it serves to cast on the party against whom the presumption exists the burden of producing evidence to overcome it.

4. Where deed conveys land and an easement appurtenant thereto to grantee, his heirs and assigns, such easement will pass to grantee's successors in title to the land.

5. The terms "reservation" and "exception" are often used as synonymous, and the intention of the parties not the language used, is the dominating factor; the circumstances existing at the time of the execution of the deed, the situation of the parties and the subject-matter are to be considered in construing a deed in this respect.

6. Technically, a reservation is some newly created right, which the grantee impliedly conveys to the grantor, while an exception is something withheld from a grant which would otherwise pass as part of it.

7. While under the common law an easement in fee cannot be created by way of reservation without words of inheritance if an easement is made the subject of an exception, technical words of limitation are not necessary.

8. A reservation cannot create an estate or interest in a stranger to the deed, but can operate only to the benefit of the grantor therein.

9. An effective exception may be made in favor of a third person not a party to a deed, in recognition and confirmation of a right already existing in him.

10. Where title is conveyed by a deed containing an exception such exception is not affected by the fact that subsequent deeds fail to mention it.

11. The question whether there has been an abandonment of an easement is one of fact and the burden of proof is upon the party asserting it.

12. While the Supreme Court will, in support of a decree, presume that the trier inferred such facts as were fairly inferable from other facts found, it will not supply the omission of an essential fact which does not appear as a reasonable deduction from the findings.

13. An easement created by deed is not extinguished by mere non-user, no matter how long continued.

14. In order to establish an abandonment of an easement created by deed there must be, in addition to non-user, acts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence.

15. An easement may be extinguished by open notorious, hostile and continuous possession on the part of the owner of the servient tenement for the statutory period of 15 years, the burden of proof being on the party asserting such possession.

16. Error in excluding an original decree, if any, is made harmless by the subsequent reception of a certified copy thereof.

BILL IN CHANCERY seeking establishment of an easement and an injunction. Decree in favor of the defendants. In Chancery, Rutland County, Black, Chancellor.

Decree reversed and cause remanded. Let a new decree be entered in accordance with the views expressed in the foregoing opinion.

Lawrence & O'Brien for the plaintiff.

Jones & Jones for the defendant, Braves.

Sidney M. Wolk for the defendant, Bacon.

Edward G. McClallen for the defendant, Rutland Trust Company.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

The plaintiff's bill of complaint alleges that he is the owner in fee of a business block on Merchants Row in the City of Rutland, and a right of way for use in connection therewith, through a passageway across the second floor of an adjoining building owned by the defendant Bravakis, upon which latter building the Rutland Trust Company holds a mortgage; that the defendant Bravakis and the defendant Bacon, her tenant, have obstructed the passageway and refuse to permit the plaintiff or his tenants to pass through it, and refuse to remove the obstructions, whereby the plaintiff is deprived of its use. The prayer is that the plaintiff be adjudged the owner of the right of way and that the defendants be enjoined from continuing the obstructions; from interfering with the removal of them; and from further obstructing or preventing the use of the passageway by the plaintiff and his tenants.

The answer of the defendant Bravakis puts the plaintiff to his proof as to his right to use the passageway; admits a refusal to remove the obstructions; recites several deeds in her chain of title in which no mention is made of the plaintiff's claimed right; and alleges that the right of way if any, has been abandoned by the plaintiff. The answer of the defendant Rutland Trust Company is the same in substance. The answer of the defendant Bacon is little more than a general denial.

After hearing and filing findings of fact the Chancellor entered a decree for the defendants, and the cause is before this Court on the plaintiff's exceptions. Since the controversy is really between the plaintiff and the defendant Bravakis, the latter will hereinafter be referred to as the defendant, as if she were the only one.

The findings of fact contain the following: the plaintiff and the defendant own adjoining buildings on the east side of Merchants Row in the City of Rutland. The plaintiff's building is situated to the south of the defendant's building. North of the defendant's building and adjoining it is another building owned by Edward McClallen, and between these is a common stairway leading from the street to the second floor of both. There is a space 3 3/4 feet wide between partitions, extending from the stairway landing, across the second floor of the defendant's building to a door which opens upon the second floor of the plaintiff's building, through which, if it were unobstructed, one could pass from the stairway through a door leading into the latter building, and it is through this space that the plaintiff claims a right of way. The Chancellor states that he is unable to find that any other space has ever been used as a passageway for this purpose.

The land upon which the McClallen, plaintiff's and defendant's buildings stand was owned by Horace G. Clark, Alanda W. Clark and Norman Clark, who erected a business block thereon. On August 12, 1857, the Clarks, by warranty deed, conveyed to George White, "his heirs and assigns, forever, to them and their own proper use and behoof," a portion of the premises described as follows: "Beginning at the northwest corner of Artemas Pratt's lot on the east side of Merchants Row: then north in the line of Merchants Row 23 feet 8 inches to the center of the first partition from the south end of the building which we have lately erected on Merchants Row; then easterly parallel with said Pratt's north line 62 feet; then southerly in Landon's west line to said Pratt's north line; then westerly to the point of beginning... and also the right (to be limited to the present building) to pass from the common stairway on the second floor to and from the premises above conveyed... said passage to be at least 3 feet wide and to be next east of the center of the building... " The grantee in this deed, George White, is the plaintiff's predecessor in title.

On the same day the Clarks conveyed, by warranty deed, to Joseph G. Foster and Israel D. Cole the premises "beginning in the east line of Merchant's Row at the northwest corner of the lot this day conveyed to George White; then north in the line of the street 22 feet 7 inches to a point opposite the center of the stairway in the building we have recently erected on Merchants Row; then east parallel with said White's north line 62 feet; then south on Landon's west line to said White's north line; then west in White's north line to the point begun at... We also reserve to said George White the right to pass from the common stairway on the second floor, cross the premises hereby conveyed, said passage to be at least three feet wide." The grantees in this deed, Foster and Cole, are the defendant's predecessors in title.

Some 14 or 15 years before May 27, 1942, a toilet was installed in the northerly part of the passage leading to the plaintiff's building, by a former owner of the defendant's building. It is not a public toilet, and is used by tenants of the defendant's and McClallen's premises, who have keys to it. In the southerly end of the passage there is now a closet, opening from defendant Bacon's barber shop on the second floor of the defendant's building, and the door leading to the plaintiff's building has been blocked by shelves. No one has used the space as a passageway to the plaintiff's premises during Bacon's occupancy of the barber shop, but how long this has continued does not appear.

Between 1873 and 1926 the defendant's building was owned by John W. Stearns or John B. Stearns and from about 1890 until December, 1917, John B. Stearns also leased the second floor of the plaintiff's building, and during a part of that time used the space as a passageway. The Chancellor states that such use was by virtue of Stearns' ownership of the building, and that except for it, he is unable to find that the plaintiff, or any of his predecessors in title, have made any continuous use of the space as a passageway, for a period of 15 years.

On November 21,...