Miller v. Hoeschler

• Decision Date: 14 November 1905
• Citation: 105 N.W. 790,126 Wis. 263
• Parties: MILLER v. HOESCHLER.
• Court: Wisconsin Supreme Court

126 Wis. 263

105 N.W. 790

MILLER

v.HOESCHLER.

Supreme Court of Wisconsin.

Nov. 14, 1905.

Appeal from Circuit Court, La Crosse County; J. J. Fruit, Judge.

Action by Franz Miller against Frank J. Hoeschler to enjoin interference with the possession and occupation of certain property. From a judgment denying part of the relief demanded, plaintiff appeals. Affirmed.

From 1870 to the time of his death in 1891, one Joseph Leinfelder owned lots 7, 8, and 9 in a certain platted addition to the city of La Crosse. Such lots lay longitudinally east and west; the east end bounding on an alley, and the west end on a government subdivision line. A few feet further west was Ninth street, in said city, between the east line of which and the west line of said lots lay a strip of land 6 feet wide at the south end and 16 feet at the north end, which did not belong to the platter of said lots. From the time of the purchase of said lots to the time of his death in 1891, Joseph Leinfelder possessed and occupied this strip, adversely, so as to have acquired full title thereto. He moved an old house onto the middle lot (8) about 4 feet east of the west lot line. It fronted toward Ninth street, and, by virtue of the owner's possession of this strip, had access thereto; such land between the houses and the street being used in the ordinary manner as a front yard. Joseph Leinfelder, upon his death in 1891, by will, devised to his son Frank lot 9 and 50 feet of lot 8, a total of about 69x140 feet of ground, upon which stood the house, which was the only building upon the three lots. He devised lot 7 to another son, but made no disposition of the strip of land lying between these lots and Ninth street, except by a general residuary devise of all property to his six children. Frank Leinfelder continued to use the dwelling house and to occupy and use the strip of land in the same manner as his father had done, namely, as a dooryard for the dwelling house and as a means of access to the street. In 1899 Frank Leinfelder mortgaged to the plaintiff the same premises devised to him by his father, which mortgage was foreclosed and the property bid in by plaintiff in April, 1902, and is still owned by him. On April 25, 1901, all of the children and heirs of Joseph Leinfelder conveyed by quitclaim to the defendant the above-mentioned strip of land along Ninth street and in front of these lots. In 1903 he proceeded to fence the same in, so as to exclude plaintiff from all entry thereon or passage across the same to Ninth street. This action was brought, alleging ownership by adverse possession in the plaintiff, and seeking to enjoin the defendant from any interruption of plaintiff's occupancy and use thereof. The court held against plaintiff's title, but held him entitled to a reasonable right of way of necessity for access to Ninth street, and enjoined defendant from interfering therewith, but refused to enjoin the latter from interfering with the possession and occupation of the rest of the strip as a doorway, for which plaintiff contended as an easement implied from such use of said premises when owned by the same person who owned the lots and house. Plaintiff appeals from the whole judgment, but assigns as error merely the refusal to include injunction against interference with the use of this strip as a dooryard.John A. Daniels, for appellant.

Doherty & Baldwin, for respondent.

DODGE, J. (after stating the facts).

The error assigned is the refusal to award to plaintiff an easement over and upon the strip lying between his premises and the street for use “as a dooryard.” Doubtless, had plaintiff's grantor owned both the strip and the house and lot, there might have arisen, from the mere exhibition of the premises, an inference of such mutual mistake or fraud as would have aroused an equity in plaintiff's favor. Obviously, however, that grantor could not convey what he did not own, and appellant's claim to an easement must rest on the existence of one in his grantor appurtenant to the premises conveyed. If the grantor, Frank Leinfelder, had any such easement, it must have arisen by implication upon the devise to him from Joseph Leinfelder of lots 8 and 9. No easement existed in Joseph appurtenant to the premises on which he located the house, for he owned the whole, and his use of any part is referable to his right as owner. Mabie v. Matteson, 17 Wis. 1, 10;Randall v. Sanderson, 111 Mass. 114;Buss v. Dyer, 125 Mass. 287. Did he create one by that devise?

The scope of the doctrine of implication of an easement over one portion of a grantor's lands in favor of the other portion, either granted or reserved, upon sale of either portion, is in much confusion in the United States. The rule in England, as quoted and adopted in perhaps the most cited of the earlier American cases, Lampman v. Milks, 21 N. Y. 505, 507, is in effect as follows: “Where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. * * * The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.” This rule, which, by the way, is said to be entirely reciprocal and to apply equally to the granted and the reserved portion, is very broad in terms, and in England has been given application accordingly, so as to support easements over adjoining premises for light and air and for lateral support of buildings, so as to preclude the owner of the servient estate from building or excavating thereon. In the states where the rule has been adopted in terms, its application has been quite limited, and in some of them an early tendency to liberality has been followed by a later strictness of limitation. See Griffiths v. Morrison, 106 N. Y. 165, 12 N. E. 580;Whyte v. Builders' League, 164 N. Y. 429, 58 N. E. 517;Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80;Buss v. Dyer, 125 Mass. 287. The following are illustrative cases of application of the rule above stated: Dixon v. Schermeier, 110 Cal. 582, 42 Pac. 1091;Fremont, etc., Ry. Co. v. Gayton (Neb.) ...