Michelet v. Cole

• Decision Date: 19 May 1915
• Docket Number: 1741.
• Citation: 149 P. 310,20 N.M. 357,1915 -NMSC- 044
• Parties: MICHELET v. COLE.
• Court: New Mexico Supreme Court

149 P. 310

20 N.M. 357, 1915 -NMSC- 044

MICHELET v. COLE.

No. 1741.

Supreme Court of New Mexico

May 19, 1915

Syllabus by the Court.

The general rule is that no right of way, which has been used during the unity of possession, will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo.

An objection to a complaint, or a cross-complaint, that it does not state facts sufficient to constitute a cause of action is good only when there is a total failure to allege some matter which is essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law or fact.

If a counterclaim is filed in an action which states facts sufficient to constitute a cause of action, but the cause of action stated cannot properly be pleaded as a counterclaim an objection thereto cannot properly be reached by a general demurrer for want of sufficient facts. The proper practice is to move to strike it out.

Appeal from District Court, Chaves County; G. A. Richardson, Judge.

Action by Jacques Michelet against C. W. Cole. From judgment for plaintiff, defendant appeals. Reversed, with directions.

Reid & Hervey, of Roswell, for appellant.

James M. Dye and Clifton Mathews, both of Roswell, for appellee.

ROBERTS C.J. (after stating the facts as above).

The action of the court in sustaining the demurrer to the second count of the counterclaim forms the basis of appellant's first assignment of error. In this count, after setting forth the preliminary facts, showing his purchase of certain lands from appellee, which said land formed a part of the larger tract owned by appellee, it was alleged in paragraphs 2 and 3:

"(2) That said tract of land was a part of a larger tract of land at the time of conveyance thereof, as aforesaid, owned by plaintiff; that on said tract of land there was situated a dwelling house, and from said dwelling house there was as defendant is informed and believes, a road or right of way leading from said house to the public and legally established highway, which said road has existed for more than 20 years next preceding the filing of the complaint herein.

(3) That at the time of said purchase, there was no other means of ingress and egress to said land, purchased as aforesaid, except over said road or right of way, which said road in part extended over the remaining land of the grantor; that such road is a necessity to defendant, and has been a necessity to defendant ever since his purchase of said described land."

While the fourth paragraph showed that the claimed "way of necessity" passed over the strip of ground, the title to which appellee sought to quiet in himself, and other lands owned by appellee, and the fifth paragraph alleged that appellee was attempting to fence up the said claimed outlet, and the prayer was for an injunction and a decree establishing appellant's right to a "way of necessity" over appellee's lands, the sufficiency of the facts set forth to constitute a cause of action depends upon the allegations contained in the second and third paragraphs, above set forth.

Appellant contends that the facts alleged in the second paragraph are sufficient to show that there had been a right of way over the lands of the appellee, Michelet, for 20 years, leading to the house on the particular 60 acres purchased by him from appellee; that this was a valuable appurtenant to said tract of land so purchased by him, and that such right of way passed by the deed to him, because of the recital in the deed, following the description of the real estate conveyed, "together with all and singular the hereditaments and appurtenances thereto belonging." It is not clear whether appellee bases his claim under this paragraph upon a prescriptive right, or upon the ground that, inasmuch as the way was in existence and apparent at the time of the making of the deed, it passed as incident and appurtenant to the land conveyed, by force and operation of the terms employed in the deed. Upon either theory, however, the facts are insufficient. Certainly, appellee owning both tracts of land, it could not be contended successfully that he could establish a prescriptive right against himself. Not a single element of a prescriptive right is alleged.

A party cannot have an easement in his own land, as all the uses of an easement are fully comprehended and embraced in his general right of ownership. The facts alleged show that appellee, prior to the sale to appellant, owned the land, for which the easement was claimed and sought to be established. Just how long prior to the sale appellee was invested with the title to both tracts is not apparent, but that is wholly immaterial, for if it be conceded that at one time the 60-acre tract purchased by appellant was owned by some one other than appellee and separate and apart from the other lands owned by appellee, and over which it was sought to establish the easement, it does appear that at the time of the sale to appellant, appellee owned both tracts of land. This being true, if it be conceded that an easement over appellee's land existed at one time, the right would cease when appellee became invested with the title to both parcels of land. As was said by the New Jersey Court of Errors and Appeals in the case of Fetters v. Humphreys, 19 N.J.Eq. 471:

"A way comes within the description of a nonapparent easement. If existent before the seisin of the two tenements is united in the same person, it is extinguished by such unity of seisin; and, whether it was a pre-existent right of way, or is a way opened by the owner and used by him, for the convenient occupation and enjoyment of the premises, it has no legal existence during the continuance of the unity of seisin, and upon the severance of the tenements does not pass unless it is a way of necessity, or the operative words of the conveyance are sufficient to grant it de novo. 11 Vin. Abr. 446, 449, Extinguishment, C; Worthington v. Gimson, 2 El. & El. 616; Pearson v. Spencer, 1 Best & S. 571; Dodd v. Burchell, 1 Hurlst & Colt, 113; Stuyvesant v. Woodruff, 21 N. J. Law, 133 ; Grant v. Chase, 17 Mass. 443 [[[[[[."

The general rule is, to which we know of no exception, that no right in a way, which has been used during the unity of possession, will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo. Pearson v. Spencer, 1 B. & S. 571; Oliver v. Hook, 47 Md. 301. In the case of May v. Smith, 3 Mackey (14 D. C.) 55, the court said:

"The only words in the deed to Minnick that could possibly be relied on to convey the right of way in question are: 'All and every the rights, privileges, appurtenances and advantages to the same belonging, or in any wise appertaining.' If there was a way belonging to the estate, as a pre-existing easement, such way would pass by force of these terms, or even without the use of them; but such terms, used in a conveyance or part of a tract of land, as in this case, will not create a new easement, nor give a right to use a way which had been used with one part

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