Marshall v. Martin

• Decision Date: 04 November 1927
• Citation: 107 Conn. 32,139 A. 348
• Court: Connecticut Supreme Court
• Parties: MARSHALL v. MARTIN.

139 A. 348

107 Conn. 32

MARSHALL v. MARTIN.

Supreme Court of Errors of Connecticut.

November 4, 1927

Appeal from Court of Common Pleas, Hartford County; Arthur E Howard, Jr., Judge.

Action by William Marshall against Patrick H. Martin, for damages and for an injunction to restrain continuing trespasses through claimed use of right of way. From a judgment for plaintiff restraining defendant from crossing plaintiff's land for certain purposes, both parties appeal. No error on plaintiff's appeal. Error on defendant's appeal. Case remanded for judgment.

Defendant owns four contiguous lots, known as the Corbin lot, the Thomas Martin lot, the plow lot, and the wood lot, respectively. The Corbin lot and the Thomas Martin lot abut on the north upon a public highway. The plow lot and the wood lot lie south of the Corbin and Thomas Martin lots, and have no direct access to the highway. The plow lot lies west of the wood lot and is bounded on the west by the tracks of the New York, New Haven & Hartford Railroad Company, and to the west of these tracks lies the plaintiff's land, known as the Marshall lot. Prior to April, 1905, the Marshall plow, and wood lots were all owned by Herman F. and Horace L Wells, as tenants in common. By reciprocal deeds and as one transaction they divided these lots; the deeds being dated April 1 and April 4, 1905. By the deed of April 1st, Horace deeded the wood lot to Herman, the deed containing a grant of--

" a right of way over and across land of the grantor to grantor's private railroad crossing for the purpose of reaching grantee's land east of the railroad and also the privilege of crossing grantor's land west of railroad from the highway by the path used for that purpose."

By the deed of April 4th, Herman deeded to Horace the plow lot and the Marshall lot with the appurtenances thereof, the deed containing the following:

" The said grantor keeps and retains the use and right of way to the said private railroad crossing on said land in going to and coming from his land east of said railroad situated south of and adjoining the land herein described, and also the right of crossing said land west of said railroad to highway in path usually used and traveled by owner of said land, his heirs and assigns forever."

On the same day Herman deeded the wood lot to the defendant, the deed containing no mention of any right of way. On April 1, 1908, Horace deeded the Marshall and plow lots to one Ingraham. On October 31, 1917, Ingraham deeded to defendant the plow lot, " subject to a right of way of H. F. Wells across the southwest corner," and on October 17, 1918, deeded to plaintiff the Marshall lot, " subject to such passway rights as of record may appear." Defendant acquired title to the Thomas Martin lot on October 26, 1910, and to the Corbin lot on July 13, 1912. The land of the Thomas Martin and Corbin lots is low and marshy and access to the highway across these lots from the plow and wood lot is for a large part of the year impracticable without the construction of an expensive way, which is practicable but would cost more than the value of all the defendant's holdings. The highway abutting the Thomas Martin and Corbin lots has in the elimination of two grade crossings been raised above the level of the lots so that the construction of a way to the wood and plow lots would entail expensive grading. The defendant has collected damages from the county for this change of grade, part of which were founded upon his loss of access to his land. The defendant claims a right of way by deed over plaintiff's land to his wood lot and a right of way by necessity to both the wood lot and the plow lot. The trial court held that defendant had a right of way by deed to the wood lot but no right of way by necessity to the plow or wood lots, and both parties appealed.

Frederick B. Hungerford, of New Britain, for plaintiff.

Arthur Perkins and Roger Wolcott Davis, both of Hartford, for defendant.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

BANKS J. (after stating the facts as above).

Plaintiff appeals from the court's refusal to find certain facts as stated in his draft finding and counterfinding, which he claims were material upon the question of intention of the parties as to whether or not a right of way passed to defendant under the deed from Herman F. Wells. He claims that the court erred in ruling that the surrounding circumstances were not material to the question of intention. The court did not so rule. Evidence of the surrounding circumstances was received. The facts which plaintiff sought to have added to the finding are either already incorporated in it in other language or are not such that they would affect the result if we should make the correction desired.

In the deed of April 1, 1905, Horace Wells, plaintiff's predecessor in title, specifically granted to Herman Wells a right of way over the former's land for the purpose of reaching the latter's land east of the railroad which was the so-called wood lot. On April 4, 1905, Herman Wells deeded the wood lot to the defendant. The deed contained no reference to any right of way, but had the usual habendum clause: " To have and to hold the above granted and bargained premises with the appurtenances thereof." This deed conveyed the easement of passage over plaintiff's land as an appurtenance of the land described therein. Blanchard v. Maxson, 84 Conn. 429, 80 A. 206; Peck v. Mackowsky, 85 Conn. 190, 82 A. 199; Alling Realty v. Olderman, 90 Conn. 241, 96 A. 944; Schroeder v. Taylor, 104 Conn. 596, 134 A. 63. The finding, even if corrected in accordance with the plaintiff's request, would contain no facts justifying a conclusion that there was no intention on the part of Herman Wells to convey a right of way to the defendant. There is no error on the plaintiff's appeal.

It is claimed upon defendant's appeal that the court erred in holding that defendant had no right of way of necessity over plaintiff's land to the plow lot and the wood lot. In view of the holding that defendant had a right of way by deed to the wood lot, it is only necessary to discuss the question of whether he had a right of way by necessity to the plow lot. Such right arises if at all from the deed of Ingraham to the defendant dated October 31, 1917. On that date Ingraham owned both the Marshall lot and the plow lot and deeded the plow lot, retaining the Marshall lot. While these two lots were owned by Ingraham, there was no access to the plow lot from the highway except across the Marshall lot. Therefore when Ingraham sold the plow lot to the defendant, retaining title to the Marshall lot, the latter (if he had no other means of access) obtained a right of way of necessity, or, more accurately by implication, over the Marshall lot to the plow lot.

" The basis of this right is the presumption of a grant arising from the circumstances of the case. Necessity does not of itself create a right, but it is evidence of the grantor's intention to convey one, and raises an implication of a grant." 9 Ruling Case Law, 768; Collins v. Prentice, 15 Conn. 39, 38 Am.Dec. 61; Myers v. Dunn, 49 Conn. 71.

At the time, however, that defendant acquired the plow lot, he owned the Corbin and the Thomas Martin lots, both of which abutted upon the highway. The Corbin lot lay between the plow lot and the highway, and the defendant had access to the plow lot from the highway either across the Corbin lot alone or by crossing both the Corbin and the Thomas Martin lots. Having such means of access to the plow lot over other land of his own, the defendant...