Lathrop v. Elsner

• Decision Date: 02 December 1892
• Citation: 93 Mich. 599,53 N.W. 791
• Court: Michigan Supreme Court
• Parties: LATHROP v. ELSNER.

53 N.W. 791

93 Mich. 599

LATHROP v. ELSNER.

Supreme Court of Michigan

December 2, 1892

Appeal from circuit court, Wayne county, in chancery; GEORGE GARTNER, Judge.

Action by John W. Lathrop to restrain Charles F. Elsner from interfering with an alleged right of way belonging to plaintiff. Judgment for plaintiff. Defendant appeals. Affirmed.

S.W. Burroughs, (Otto Kirchner, of counsel,) for appellant.

E S. Clarkson, for appellee.

MONTGOMERY, J.

The bill in this case was filed to restrain the defendant from interfering with an alleged right of way over certain lands occupied by the defendant. Complainant's right rests upon a reservation or exception in a certain deed executed by one Harvey King to Ira H. Wait, March 2, 1853, complainant having derived his title through mesne conveyances from Wait. At the time the conveyance in question was made Harvey King was the owner of 50 acres of land, the title to 25 of which is now vested in complainant, the title to the remaining 25 being in defendant, subject to the alleged easement. By the deed in question the 25 acres abutting upon the highway was conveyed to Wait, King retaining 25 acres in the rear, and the deed contained the language folowing, after the description of the property: "Reserving from said grant the perpetual right of way for a private way through on the south side of said lot." The circuit judge granted the relief prayed in the bill. The defendant appeals, alleging- First, that there is not a sufficient basis for equity jurisdiction second, that the reservation did not inure to the benefit of the 25 acres remaining in King, and did not pass by conveyance to his grantees; and, third, that the easement, if any such has been created, has been lost by nonuser.

1. We think equity may well take jurisdiction of such a case. As was said in Nye v. Clark, 55 Mich. 599, 22 N.W. 57 "No action of damages could give adequate redress to a party who is hemmed in so as to have no peaceable egress from his own farm." See, also, Wilmarth v. Woodcock, 66 Mich. 331, 33 N.W. 400; Morgan v. Meuth, 60 Mich 238, 27 N.W. 509; Cook v. Mayor, L. R. 6 Eq. 177; Welsh v. Taylor, (Sup.) 2 N.Y. Supp. 815; Longendyck v. Anderson, 59 How. Pr. 1.

2. We think the contention that the reserved right of way was in gross, and not appurtenant to the land retained by the grantor, should not prevail. The right of way reserved by the deed could have had no value to King except as it enabled him to reach the land retained by himself. In the case of Dennis v. Wilson, 107 Mass. 591, the identical question here involved was presented, and it was held that a reservation in the words, "excepting and reserving a right of way to pass and repass over said land with teams and otherwise, on the northerly side of said premises, not exceeding eight rods from old Worcester road," created an easement appurtenant to the land remaining in the grantor. See, also, Borst v. Empie, 5 N. Y. 33. The case of Garrison v. Rudd, 19 Ill. 560, cited by defendant, is clearly distinguishable from the case at bar. In that case the reservation was in these words: "The parties of the first part reserving to themselves and their heirs, forever, the use of an alley twenty-five feet wide on or near the south side of the above-conveyed tract, jointly with the party of the second part, and his heirs; such alley to be entered from said road." The court held that this was a reservation of a right of way in gross, which would not pass by a conveyance of the land, the title to which was retained by the grantor. But in that case both termini of the way were disconnected from the land retained by the grantor, and hence would not be presumed to be appurtenant to it.

3. It is undoubtedly the general rule that in a reservation, as well as in the granting clause of a deed, the word "heirs" must be employed to create an estate which will extend beyond the life of the party in whom the estate is vested. But it is said in Washburn on Easements, (page 30:) "In respect to whether the reservation is of a perpetual interest, like a fee, in the easement reserved, the question seems to turn upon whether it is a personal right an easement in gross, or one for the benefit of the principal estate and its...