Neary v. Martin, 5915

• Decision Date: 16 March 1977
• Docket Number: No. 5915,5915
• Citation: 57 Haw. 577,561 P.2d 1281
• Parties: Irene Medeiros NEARY and Betty N. Alberts, Plaintiffs-Appellants, v. Robert T. MARTIN and Martha E. Martin, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 1281

561 P.2d 1281

57 Haw. 577

Irene Medeiros NEARY and Betty N. Alberts, Plaintiffs-Appellants, v. Robert T. MARTIN and Martha E. Martin, Defendants-Appellees.

No. 5915.

Supreme Court of Hawai'i.

March 16, 1977.

Syllabus by the Court

1. The conveyance of a portion of a larger parcel of land owned by the grantor may result in the creation by implication of an easement corresponding to a pre-existing quasi-easement and burdening one of the resultant parcels in favor of the other, whether it is the quasi-dominant tenement or the quasi-servient tenement which is conveyed.

2. The implication of an easement corresponding to a pre-existing quasi-easement effectuates the presumed intent of the parties and may be rebutted by circumstances of the transaction or language of the conveyance inconsistent with the existence of such intent.

3. Power in a trustee to sell, encumber or otherwise deal with any of the trust property includes power to convey trust property free from the burden of a pre-existing quasi-easement in favor of retained trust property.

4. Where there is no evidence as to the amount of actual loss or damage caused by cross-defendant's repeated entries on cross-plaintiff's property and wantonness or recklessness on the part of cross-defendant is not shown, no more than nominal damages may be awarded.

Wendell F. Crockett, Wailuku (Crockett & Crockett, Wailuku, of counsel), for appellant.

Sanford J. Langa, Wailuku (Langa & Archer, wailuku, of counsel), for appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

Plaintiffs-Appellants and Defendants-Appellees own adjoining lots in Paia, Maui. Appellants claimed an easement of way over Appellees' lots and sought an injunction against its obstruction. Appellees having counterclaimed, after a bench trial the circuit court found for Appellees on the issue of the easement's existence, enjoined Appellant Neary from trespassing on Appellees' lots and awarded damages to Appellees from Appellant Neary. We affirm as to the easement and the injunction, and reduce the award of damages to $1.00 and costs.

All of the real property involved in this action was in the ownership of John M. Medeiros in 1970, when it was conveyed, together with other property, to Benjamin Medeiros, a son of the grantor, as trustee, in trust for the settlor for his life. The trust deed provided that the trustee should pay amounts needed for the settlement of the settlor's estate to his personal representatives upon their demand received prior to the distribution of the trust estate. Upon the settlor's death, the trust deed provided that the trust should terminate and the principal of the trust estate should vest in and be transferred to the settlor's children and their issue. The trustee was given very general powers of management and sale, including an express power, when required to distribute the trust property, to do so in kind or in money, in his discretion.

At the time of the creation of the trust, although in the sole wonership of the settlor, the subject property was shown on the tax maps as six lots and a lot obviously laid out for use as a roadway, although not so designated. Of the six lots, only Lot 6 had street frontage on Baldwin Avenue, and the other lots fronted on the roadway lot which in turn fronted on Baldwin Avenue adjacent to Lot 6. The subdivision of the land as so shown had been created by John M. Medeiros by the filing of a map in 1939, but no change in his ownership of the lots had occurred before the conveyance in trust in 1970. The property was used as the site of the family residence, situated entirely on Lot 6, and a garage was situated in the rear of the residence so as to lie across the roadway lot and occupy a portion of Lot 3. The garage was reached by a driveway situated on the roadway lot.

John M. Medeiros died in 1970. Benjamin Medeiros proceeded, over a period of years, to liquidate portions of the trust property and to distribute the proceeds to the six children of the settlor. In 1972, the trustee sold to Appellees all of the subject property with the exception of Lot 6. In the deed, each of Lots 1 to 5 and the roadway lot is described as a separate parcel by reference to the tax map and the granted premises are warranted to be 'free and clear of all encumbrances'. Later in the same year, Benjamin Medeiros conveyed Lot 6, together with other trust property, to the six children of John M. Medeiros, of whom Appellant Neary is one. By a deed recorded July 31, 1974, the interests in Lot 6 of the six children were conveyed to Appellant Neary.

Appellant Neary had lived with her father in the family residence on Lot 6 for many years prior to his death, and continued to reside there after his death as a tenant of the trustee. During the father's lifetime, and until the conveyance to Appellees, the garage and the driveway leading to it were used by the occupants of the residence. The trial court found specifically that the purchase by Appellees was preceded by negotiations with Benjamin Medeiros in which it was agreed that the roadway lot would not be encumbered by an easement, that Benjamin Medeiros contemplated that Lot 6 would be served by a driveway across its frontage on Baldwin Avenue and that there were no circumstances giving rise to an inference that Benjamin Medeiros intended to reserve an easement over the land conveyed for the benefit of Lot 6.

Appellants claim that the facts of this case show the existence of an easement or right of way for ingress and egress to Lot 6, appurtenant to Lot 6, over the roadway lot. Appellants rely upon two principal propositions: first, that the continuous and apparent use of the roadway lot for the benefit of Lot 6 created an easement or servitude, to which the roadway lot would remain subject upon its sale to Appellees in the absence of an express agreement on the subject; and second, that the trustee lacked authority under the trust deed to sell the roadway lot free and clear of this quasieasement, with the result that any agreement on the subject of the easement over the roadway lot should be given no effect.

We have recognized that a conveyance of a portion of a larger parcel of land owned by the grantor may result in the creation by implication of an easement corresponding to a pre-existing quasi-easement and burdening one of the resultant parcels in favor of the other. Stibbard v. Rego, 38 Haw. 84 (1948). The circumstances under which this doctrine comes into operation have been described by us in Tanaka v. Mitsunaga, 43 Haw. 119, 122 (1959), in the following paragraphs quoted from 3 Powell on Real Property § 411, which continue to appear in the 1976 Rohan revision of this work:

All implications of easements necessarily involve an original unity of ownership of the parcels which later become the dominant and servient parcels. When A owns Blackacre, it is not possible for A as the owner of the west half of Blackacre to have a true easement with respect to the east half of Blackacre; but it is both possible and frequent to find A using the east half of Blackacre for the service of the west half of Blackacre, as for example, when the east half of Blackacre contains drains, or sewers, or irrigation ditches, or roadways or stairways which increase the usability of the west half of Blackacre. It is then possible to describe A's utilization of one part of Blackacre for the service of another part thereof as a quasi-easement, and to speak of the served part as the quasi-dominant tenement, and of the burdened part as the quasi-servient tenement.

Where such a quasi-easement has existed and the common owner thereafter conveys to another the quasi-dominant tenement, the conveyee is in a position to claim an easement by implication with respect to the unconveyed quasi-servient tenement. Whether this claim will be effective depends upon the satisfaction of certain tests established by the cases. It is usually said that the quasi-easement must have 'apparent,' 'permanent' and 'important for the enjoyment of the conveyed quasi-dominant parcel.'

Where a quasi-easement exists at the time of the severance of the parcels, a corresponding easement may be implied whether it is the quasi-dominant tenement or the quasi-servient tenement which is conveyed. In Stibbard, we quoted the following from the 1924 edition of Thompson on Real Property, § 358:

'that when a continuous and apparent easement or servitude is imposed by the owner of land upon one part of it for the use and benefit of another part, a purchaser, in the absence of an express reservation or agreement on the subject, takes the servient property subject to the easement or servitude.'

Many courts have shown greater reluctance to imply a reservation of an easement (where the quasi-servient tenement is conveyed) than a grant of an easement (where the quasi-dominant tenement is conveyed). ¹ Evidently reflecting such a view, a later addition of Thompson on Real Property deletes the language which we quoted in Stibbard and expresses the rule as requiring that the easement be 'strictly necessary' for the enjoyment f the land retained in order for an implied easement to arise by reservation. ²

We do not find it necessary to pursue this question or to consider whether the easement implied in Stibbard arose by grant or reservation. ³ In Tanaka v. Mitsunaga, supra, we said that 'the basis of an implied easement is the presumption of grant arising from the circumstances of the case. Such presumption is one of fact, which may be rebutted.' (43 Haw. at 123) The circumstances of the conveyance which we looked to as negating the grant of an implied easement in Tanaka were...