Myers v. Spencer

• Decision Date: 16 May 1947
• Docket Number: No. 23.,23.
• Citation: 27 N.W.2d 672,318 Mich. 155
• Parties: MYERS et al. v. SPENCER et ux.
• Court: Michigan Supreme Court

318 Mich. 155

27 N.W.2d 672

MYERS et al.

v.SPENCER et ux.

No. 23.

Supreme Court of Michigan.

May 16, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Allegan County, in Chancery; Fred T. miles, judge.

Suit by Robert W. Myers and others against William Spencer and wife to restrain defendants from interfering with a right of way which plaintiffs claim over defendants' land. From an adverse decree, plaintiffs appeal.

Decree reversed and decree entered in accordance with opinion.

Before the Entire Bench.

Edward J. Ryan, of Kalamazoo, for plaintiffs and appelllants.

Harry Pell, of Allegan, for defendants and appellees.

BOYLES, Justice.

This case involves a right of way which plaintiffs claim to have over certain land of the defendants. The map attached hereto shows the physical aspects of the case:

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Plaintiffs own certain land in the city of Otsego, Allegan county, lying north of Water street, or north of a line extended west from the north boundary of Water street. These parcels are designated on the map by th e letters A, B, C and D. Defendants own the parcel south of Water street, indic ated on the map by ‘Bancroft to Spencer, July 15, 1943.’ Plaintiffs claim the right to an easement along the westerly boundary of defendants' property, adjac ent to the Grable property. According to the testimony, a sidewalk was constru cted along the west boundary of the Spencer property at the time it was owned b y the Bancrofts. This is the passageway between Water street and Allegan stree t, along the western boundary of the Spencer property, that is here involved. O bstructing it, the defendants Spencer erected a barrier and denied plaintiffs t he use of this passageway, wherefore the plaintiffs filed the bill of complaint in the instant case to restrain the defendants from interfering with their cla imed right of way. The trial court, after hearing the proofs, held that plaint iffs had not shown they had a right of way, either by grant or by prescription, and entered a decree accordingly from which plaintiffs appeal. They make no c laim of a right of way by necessity, but claim an easement by grant, relying on certain conveyances, and reservations therein. Plaintiffs also claim an easeme nt ‘by virtue of 15 years and more of user or dedication.’ As to that claim, h owever, there is an absence of sufficient proof of a continuous, uninterrupted and adverse use for 15 years or more necessary to establish an easement by pres cription, and the circuit judge properly so found. Menter v. First Baptist Chu rch of Eaton Rapids, 159 Mich. 21, 123 N.W. 585;Roberts v. Wheelock, 237 Mich. 689, 213 N.W. 72;Burling v. Leiter, 272 Mich. 448, 262 N.W. 388, 100 A.L.R. 1 312.

In 1936 the State Savings Bank, of Otsego, was the owner in fee simple of all the land now owner by plaintiffs and defendants, with the exception of the ‘Carroll’ parcel. Water street, as originally platted, extended from North street westerly to the eastern boundary of the ‘Grayledbetter’ parcel. In 1941 the city acquired title for 50 feet in width across the Gray-Ladbetter parcel, and right of way for extension of Water street to the west for a distance of 243.75 feet.

On January 29, 1936, the bank conveyed that part of its land which is now owned by the defendants, the ‘Bancroft to Spencer’ parcel, to the Bancrofts. The deed recited:

‘Subject, however, to a north and south right of way over the above property to provide ingress and egress to property owners whose property lies north and northwest of the property herein conveyed.'

After the above conveyance to the Bancrofts the bank remained the owner of the land adjoining on the north and northwest, namely, the Rush A, B, C, D, and Myers A, B, C parcels, until October of that year.

On October 17, 1936, the bank conveyed to the Bancrofts the Myers B and C parcels, ‘excepting right of way for extension of Water street if extended, and reserving rights of ingress and egress to adjoining landowners.'

On August 31, 1938, the bank conveyed to Rush the Rush A, B, and D parcels, shown of the map, by warranty deed, without any exceptions, reservations, or express grant or mention of any right of way.

On June 13, 1939, the Bancrofts conveyed to plaintiffs Myers the Myers B parcel, as shown on the map, said deed reciting, ‘excepting right of way for extension of Water street if extended, and reserving right of ingress and egress to adjoining landowners.'

On June 21, 1941, the bank conveyed to Rush the Rush C parcel, as shown on the map, without mention of any exceptions, reservations, express grant or mention of any right of way.

On June 15, 1943, the Bancrofts conveyed to the Spencers the ‘Bancroft-Spencer’ parcel, reciting in the deed:

‘Subject, however, to a north and south right of way over the above property to provide ingress and egress to property owners whose property lies north and northwest of the property herein conveyed.'

On June 16, 1945, the bank conveyed its remaining parcel, Myers A, to the plaintiffs Myers, reciting:

‘This deed reserves the right of ingress and egress to adjoining landowners.'

On October 13, 1945, the Bancrofts conveyed to the plaintiffs Myers the Myers C parcel, the deed reciting, ‘reserving right of ingress and egress to adjoining landowners.'

Summarizing the situation as shown by these various instruments, prior to January 29, 1936, the bank was the sole owner of all the property now owned by the plaintiffs and defendants, except Carroll who owns property north of a line extended west from Water street and whose property is, therefore, ‘north and northwest’ of the property conveyed by the bank to the Bancrofts. The first conveyance of property by the bank, the one to the Bancrofts conveying to them the property now owned by the defendants, on January 29, 1936, recited:

‘Subject, however, to a north and south right of way over the above property to provide ingress and egress to property owners whose property lies north and northwest of the property herein conveyed.'

The purpose of this reservation becomes plain when the circumstances are considered. The bank still owned property north and northwest of the property conveyed-north of Water street. Residents north of Water street had been going to and from Allegan street either by crossing the land of Mrs. Grable or the land deeded to the Bancrofts, or both. This was their shortcut to Allegan street, instead of going the roundabout way east on Water street. to North street, then south on that street. The bank sought to protect a right of way for its remaining property and for other property owners north and northwest of the property then conveyed to the Bancrofts, now owned by the defendants. Thus, the bank reserved an easement across the Bancroft land, which the Bancrofts subsequently reserved in conveying the same to the Spencers, and which land thereupon became subservient to the dominant tenement retained by the bank in its remaining land north of Water street. A similar situation arose in Akers v. Baril, 300 Mich. 619, 2 N.W.2d 791, where the Court (syllabi) held:

‘The reservation of an easement of way apparently for the benefit of all of grantor's remaining property adjacent to such right of way and existing at the time of the sale of the remaining property cannot subsequently be extinguished by the former grantor. * * *

‘An easement will never be presumed to be a personal right where it can be construed as appurtenant to some estate, notwithstanding the silence of the deed.

‘Where an owner conveys part of his land and reserves an easement over it, without specifying that such easement is to be appurtenant to land retained by him, the surrounding circumstances, including the adjacency of the way to the land retained, may be considered by the court in order to ascertain the intention that the easement was intended to be appurtenant thereto.

‘Easement of way reserved by grantor who was the owner of parcels of land adjacent to such easement is construed as appurtenant to such adjacent and retained lands although such easement is not specified in the reservation as being appurtenant.'

See, also, the cases cited and quoted in the latter part of this opinion.

It is apparent that on January 29, 1936, the Bancrofts took the property now owned by the Spencers, subject to an easement over their property, reserved by the bank. On July 15, 1943, the Spencers, defendants herein, took this same property from the Bancrofts, subject to the same easement. This was not a personal right, held solely for the bank, or for the Bancrofts. It was appurtenant to the dominant estate-the property owned by the grantor bank, north and northwest of the property thus conveyed. Akers v. Baril, supra; Collins v. Stewart, ...