Littlefield v. Hubbard

• Decision Date: 19 March 1925
• Citation: 128 A. 285
• Parties: LITTLEFIELD v. HUBBARD et al.
• Court: Maine Supreme Court

128 A. 285

LITTLEFIELD

v. HUBBARD et al.

Supreme Judicial Court of Maine.

March 19, 1925.

On Appeal from Supreme Judicial Court, York County, in Equity.

Bill for injunction by William O. Littlefield against Elvira Hubbard and others. Decree for plaintiff, and defendants appeal. Affirmed.

Argued before CORNISH, C. J., and PHILBROOK, MORRILL, WILSON, and BARNES, JJ.

Emery & Watcrhouse, of Biddeford, for appellants.

Willard & Ford, of Sanford, for appellee.

PHILBROOK, J. This controversy arises over disputed rights regarding a strip of land 16 feet wide and about 54 feet long, situated in Kennebunk, at Kennebunk Beach so-called. In August, 1919, the plaintiff herein brought suit against this defendant, Elvira A. Hubbard, for trespass in entering upon this land and building a concrete walk thereon, over which she, and her customers and patrons, passed in reaching the buildings situated on her land. That case was before us (Littlefield v. Hubbard, 120 Me. 226, 113 A. 304), and it was there held that the plaintiff owned the strip of land in fee simple, and whatever the defendant's right of passage over the way, if any, she had no right to build a concrete walk thereon, or otherwise disturb the soil upon the fee of the plaintiff. Whether or not the defendant had any right of passage over the land was not determined in that case. Since that case was decided, the defendant Hubbard and her tenants, customers, and patrons, some of whom are defendants herein, have continued to use this way, on foot and with automobiles. The instant case is a bill in equity asking for an injunction against such use.

The defendants seek to justify their use on three grounds: First, because, as to the Hubbard land, this way is a way of necessity; second, because it is a way established by dedication; third, because the public had gained a right of way by prescription. At page 228, of volume 120 (113 A. 304), reporting the first above case, is to be found a sketch of the premises, which is hereby made part of this opinion, and to which we shall refer

The justice who heard the case sustained the bill and ordered issuance of the injunction prayed for, from which decree the defendants appealed.

Right of way because of necessity.—The land on which Mrs. Hubbard's buildings stand is lot numbered 4 on the sketch. She derived her title, not from the plaintiff, but from the Kennebunkport Seashore Company. Her deed describes the land conveyed to her as bounded thus:

"Beginning at the southeasterly corner of a lot of land heretofore conveyed by said grantor to C. Sewall Hubbard [in Littlefield v. Hubbard, supra, it was decided that this corner is at G] and on the westerly side of the road leading to Lord's Point, so called (said point not adjoining said road), thence running southwesterly by said Sewall Hubbard's land, 400 feet to an eye-bolt in a ledge in the cove, so called, thence easterly in a straight line about 400 feet to a point 3 feet distant from the west side of the sewer manhole, thence around the manhole, about 6 feet to another point, thence northerly 52 feet, to the place of beginning."

By a plan marked Exhibit 9, which the sitting justice had an opportunity to examine, but which is not before us, the justice found it clearly to appear that lot numbered 4 is not adjacent nor contiguous to the 16-foot strip in question. He also found that said lot, at the time Mrs. Hubbard bought it from the Seashore Company, was a narrow strip of high land, dropping down with a rocky slope to the sea, and that the westerly boundary of the lot is water. These being questions of fact, his findings are conclusive, since no testimony to the contrary appears. He also finds testimony in the case that from the southeasterly corner of Mrs. Hubbard's lot its owner had access to the Lord's Point road without passing over the 16-foot strip of land in question. The testimony in the record sustains all these findings.

The defendants in their argument admit the long-established rule that, where land borders on the ocean, a public highway, there exists no way of necessity even over a grantor's land, although such passage by water may not be as convenient as a passage by land, since necessity and not convenience is the test. Hildreth v. Googins, 91 Me. 227, 39 A. 550; Kingsley v. Gouldsborough Land Improvement Co., 86 Me. 279, 29 A. 1074, 25 L. R. A. 502.

But, while admitting this rule, they now ask its abrogation or modification in this case because of the great inconvenience, as they claim, attendant upon the use of ocean access to her premises. While all courts agree that there may, under some circumstances, be a way by necessity, they are not in complete agreement as to just what necessity is required. The word "necessity," as applied to a way by necessity, has been held not to mean that there must exist an absolute physical Impossibility of otherwise reaching the alleged dominant estate. When a way exists, but the expense to be incurred in utilizing it is grossly in excess of the total value of the estate itself, an easement of necessity is sometimes recognized. Smith v. Griffin, 14 Colo. 429, 23 P. 905; Pettingill v. Porter, 90 Mass. 1, 85 Am. Dec. 671.

But convenience alone cannot give a right of way. Ann. Cas. 1913C, 1112, note to Bussmeyer v. Jablonsky, where may be found a collection of cases sustaining this doctrine, from England, Canada, and from 32 states in our Union. In many decisions in that long collection, including Kingsley v. Gouldsborough, supra, the rule is made more restrictive by stating that the way must be one of strict necessity, and that mere convenience is not, sufficient. 21 R. C. L. 1214. See, also, Whitehouse v. Cummings, 83 Me. 91, 21 A. 743, 23 Am. St. Rep. 756, where it is distinctly stated as the rule of law in this state that a way of necessity must be one of strict necessity, and not one of mere convenience.

Since the defendant Hubbard, as we have already said, obtained her title from the Seashore Company, and not from the plaintiff, it should also be observed that every right of way of necessity is founded on a presumed grant, hence none can be presumed over a stranger's land, and none can be thus acquired. Whitehouse v. Cummings, supra, and many cases there cited.

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