Rischall v. Bauchmann.

• Decision Date: 04 April 1946
• Citation: 132 Conn. 637,46 A.2d 898
• Court: Connecticut Supreme Court
• Parties: RISCHALL et al. v. BAUCHMANN.

132 Conn. 637

46 A.2d 898

RISCHALL et al.

v.BAUCHMANN.

Supreme Court of Errors of Connecticut.

April 4, 1946.

Appeal from City Court of Meriden; Poliner, Judge.

Action by Max L. Rischall and another against William C. Bauchmann for an injunction restraining the defendant from blocking off a certain sidewalk. From a judgment for plaintiffs, the defendant appeals.

Error and new trial ordered.

Lewis J. Somers, of Meriden, for appellant.

Harry R. Cooper, of Meriden, and Harry W. Edelberg, of Middletown, for appellees.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

BROWN, Judge.

The plaintiffs by this action sought to enjoin the defendant from interfering with their use of a concrete walk leading from their house across the defendant's intervening land to the westerly sidewalk of Broad Street in Meriden. The plaintiffs claim that the sale to them of this residence property by the common owner, prior to his sale of the intervening property to the defendant, was made under circumstances which created an easement by implied grant entitling them to use this existing concrete walk, their only means of access to Broad Street. From judgment in their favor the defendant has appealed. The facts established by the court's finding, in so far as material, may be thus summarized: In 1907 Ethel Yale Meyers owned an undivided tract of land at the southwesterly corner or Broad and Liberty Streets in Meriden. A house known as No. 562 1/2 Broad Street was located on the southwesterly portion of the tract. It faced easterly toward Broad Street, and a concrete walk three feet wide and approximately 102 feet long extended from its front entrance to Broad Street. This same condition had existed for a number of years before Mrs. Meyers acquired the property. When the house was built, the then owner of the entire tract set aside a strip of land five feet wide, extending from the front of the house to Broad Street, as the only way for passing back and forth between them, and constructed thereon the walk above mentioned to serve this purpose. Because of the topography of the land and the surrounding circumstances, the common owner expressly created a quasi easement to use the strip of land as a more convenient way appurtenant to the house No. 562 1/2 for better enjoyment.

The Meriden Savings Bank succeeded to Mrs. Meyers' ownership by foreclosure on February 12, 1932. On November 18, 1941, a map showing a subdivision of the property, prepared by a civil engineer upon the bank's order, was filed on the office of the town clerk of Meriden. This map shows the land, including an additional adjoining piece on Liberty Street owned by the bank, divided into four plots, designated as Lots No. 1, 2 and 3 and Plot A. Lot No 1 is the northeasterly portion at the corner or Broad and Liberty Streets. Plot A, on which the three-foot concrete walk is located, is five feet in width throughout, adjoins the south side of Lot No. 1, and extends back approximately 102 feet from Broad Street. The northerly side of Lot No. 3 is contiguous to the southerly side of Plot A. Lot No. 2, on which the house No. 562 1/2 stands, adjoins Lot No. 1, Plot A and Lot No. 3 on the west and has a frontage of 50 feet on Liberty Street.

On January 6, 1942, the bank conveyed to the plaintiffs by quitclaim deed, recorded the same day, ‘a certain piece or parcel of land, with the buildings thereon, situated in the City of Meriden, known as No. 562 1/2 Broad Street, also known as Lot No. 2 on a map of ‘Property of Meriden Savings Bank, Broad and Liberty Street, Meriden, Connecticut,’ made by H. E. Daggett, C. E. dated October 1941, which map is on file in the office of the City Clerk of Meriden.' A part of the description was: ‘* * * bounded * * * Northerly by Liberty Street, 50 feet; Easterly by Lot No. 1 as shown on said map, 70.52 feet; by Plot ‘A’ as shown on said map, 7 feet; and by lot No. 3 as shown on said map, 66.5 feet.' The deed contained the habendum ‘To have and to hold the premises with all the appurtenances, unto the said re-leasees their heirs and assigns forever.’ At no time prior to the payment of the purchase price by the plaintiffs and the delivery the bank of the deed and the map was there any discussion concerning the use of the concrete walk. Since this conveyance, the plaintiffs have continued to own the property. On September 14, 1942, the bank conveyed to the defendant by quitclaim deed the ‘parcel of land with buildings thereon * * * known as Lot No. 1 and Plot A on a map,’ which was specifically referred to in the same language employed in the deed to the plaintiffs. The property conveyed was bounded ‘Southerly by Lot No. 3 as shown on said map, 101.8 feet, Westerly by Lot No. 2 as shown on said map, 77.52 feet.’ The defendant has ever since been the owner of this property. The surface of the ground along the north side of the plaintiffs' house is from 10 to 11 feet higher than their land where it abuts the southerly sidewalk of Liberty Street, and 45 feet back from the street a terrace extends across the lot from east to west. A fairly large maple tree stands just north of the plaintiffs' front veranda on the east side of the house, and there are shrubs immediately north of the steps leading to this veranda.

Plot A at its westerly end is practically level with Lot No. 2, and at its easterly end with Broad Street. The plot has been used as a means of access to and from what is now the plaintiffs' home, openly and continuously, since sometime prior to 1907, and this use has been reasonably necessary for the fair enjoyment of the plaintiffs' property. At the time the five-foot strip, later designated Plot A, was originally set aside as a means of access to Broad Street, it was expressly created as a more convenient appurtenance to the dwelling No. 562 1/2. The plaintiffs have occupied their property continuously since 1932, having been tenants prior to acquiring title, and during all of the time have enjoyed this use of Plot A freely and without molestation. No easement over Plot A was either established or needed for the benefit of either Lot No. 1 or Lot No. 3, nor was the walk designed to serve either of those properties. The easement over Plot A was, however, purposely made an appurtenance to the dwelling now owned by the plaintiffs and it persisted as such after the subdvision made by the bank. At the time this easement was created, the bank as common owner had sufficient frontage on Liberty Street to permit it to construct a means of access from that street, but it saw fit not to do so. The plaintiffs believed that they were acquiring the easement to Broad Street by the bank's deed to them. Prior to the purchase by the defendant of Lot No. 1 and Plot A he examined the premises, saw the physical conditions and the use to which Plot A was put, and had actual knowledge of the use made of it by the plaintiffs. On April 25, 1945, the defendant attempted to assume complete dominion over Plot A by the erection of a barrier along its south and west boundaries to exclude the plaintiffs from any further use of it.

The defendant by his assignments of error has attacked the court's conclusions on the ground that they are not supported by the subordinate facts. The conclusions decisive of the case were that (1) under the existing circumstances, in accord with the intent of both parties, the deed from the bank to the plaintiffs created by implication an easement of access by the existing walk between the property conveyed and Broad Street which was a reasonably necessary appurtenance for the fair enjoyment of the dwelling upon the conveyed premises; (2) this easement has never been extinguished; and (3) the defendant by his interference with it has committed a violation of the plaintiffs' rights which entitles them to injunctive relief. Judgment for the plaintiffs was entered accordingly. The primary question for determination is whether the deed by the bank to the plaintiffs was effective to create the easement of access by implication.

In so far as the court's first conclusion is one of fact, it is supported by the subordinate facts. Whether the further conclusion that an easement was created by implication is correct is to be tested by this controlling principle, expressly approved by this court: “Where during the unity of title an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which, at the time of the severance, is in use, and is reasonably necesary for the fair enjoyment of the other, then upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case the law implies that with the grant of the one an easement is also granted or reserved, as the case may be, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage in substantially the same condition in which it appeared and was used when the grant was made.' John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 586, 2 N.E. 188, 191, 53 Am.Rep. 550.' Slachter v. Olderman, 116 Conn, 156, 158, 164 A. 202, 203; 1 Thompson, Real Property, Perm.Ed., § 337 and cases cited. While the necessity involved in the Slachter case may be characterized as more urgent than here, there is ample authority that in so far as necessity is significant it is sufficient if the easement is ...