Rotch v. Livingston

• Decision Date: 21 April 1898
• Parties: ROTCH v. LIVINGSTON et al. THAYER v. SAME.
• Court: Maine Supreme Court

40 A. 426

91 Me. 461

ROTCH

v. LIVINGSTON et al.

THAYER

v. SAME.

Supreme Judicial Court of Maine.

April 21, 1898.

(Official.)

Report from supreme judicial court, Hancock county.

Suits in equity by Anna S. Rotch against Johnston Livingston and others, and by Sophia B. Thayer against same, for an injunction. The cases were heard and tried together. Bills dismissed.

The purpose of the bills, both being alike, was to restrain the defendants from excavating, grading, and draining, and also building a sidewalk upon, a strip of land 10 feet wide in front of the plaintiffs' premises, and being a part of a private way 50 feet in width, as originally laid out by the former owners, and known as the "Livingston Road," at Bar Harbor. This 10-foot strip of the plaintiffs' land lies within the 50-foot locus, and between the 30-foot finished road and the plaintiffs' southern line.

The allegations of the plaintiffs' bill were, in substance, as follows:

(1) That the defendants have not, and never had, more than mere surface rights; i. e. rights to pass and repass over the natural surface of the ground.

(2) That the defendants have not a right of way 50 feet wide, but only a right of reasonable width within the limits of the 50 foot wide Livingston Road, and that 30 feet is a reasonable width, and is all that they are entitled to as a way.

(3) That In 1893, when the 30-foot finished road was built, a contract was entered into whereby the defendants agreed that the portion of the way not then wrought should remain intact for the purpose of ornamentation by the land owners.

(4) That, if there was no such contract, there were certain representations and conduct on the part of the defendants which estop them from disturbing the surface of that portion of the way outside the 30-foot wrought track.

The defendants answered, in substance:

(1) That their rights are not confined to the surface, but that they have a right to fit the way reasonably for travel.

(2) That their way is not one merely of reasonable width. They claim to have a right of way over the whole of the Livingston Road.

(3) That there was no such contract as the complainants claim.

(4) That there were no such representations or conduct as the complainants rely upon as a basis for an estoppel.

Briefly stated, the case shows that the Livingston Road is a private way, 50 feet wide, leading from Main street easterly to the property of the late Charles J. Morrill. The center line of this road, 1,100 feet in length, throughout its extent, is the northern line of land of the defendant Livingston, and is the southern line of three lots, one owned by each of the plaintiffs, and one owned jointly by the defendants How and Bates. All the above-named persons, together with the defendant John S. Kennedy, and other persons not parties to the suit, have rights of way in this road.

The deeds establishing the way, and under which all the parties claim, provide that the road was to be made and maintained at the joint expense of the parties entitled to use it.

In 1893, Messrs. Livingston and How and Mrs. Thayer and Miss Rotch joined in building a 30-foot track in the middle of the 50-foot way. Of the cost of this track, Mr. Livingston paid one-half, Mr. How about three-tenths, and the plaintiffs about one-tenth each.

In 1891, Mr. Livingston had conveyed a part of his property to the defendant John S. Kennedy, and had agreed with Mr. Kennedy to build this way throughout its whole width.

In 1890, Mr. Livingston, for the purpose of improving his property, and also for the purpose of carrying out his contract with Mr. Kennedy, determined to complete the building of the road, and so informed the plaintiffs. They were unwilling to join, and Mr. Livingston offered to pay the whole expense. They denied his right. He declared his purpose to fit the remainder of the way for travel; whereupon the plaintiffs brought these suits, asking that the defendants be enjoined.

The material facts are stated in the opinion of the court.

H. E. Hamlin and H. G. Vaughan, for plaintiffs.

L. B. Deasey, for defendants.

EMERY, J. These are two similar suits in equity reported to the law court for determination upon the bills, answers, and evidence. Some technical objections were at first taken upon either side, but they have all practically been waived in the desire of the parties for the opinion of the court upon the merits, to the consideration of which we at once proceed.

The scene is Bar Harbor, an extensive summer resort containing many beautiful and costly summer residences. The parties are the several owners of a group of such residences, or residence lots, served by a private road, now called the "Livingston Road," leading from the highway called "Main Street," or the "Schooner Head Road," about 1,100 feet easterly to the "Morrill Place," so called. The controversy is over the respective rights and duties of the parties in both the soil and the use of this private road.

The tract of land formed by the various lots now concerned in these suits was formerly known as the "Snow Farm," bounded on the west by the highway then called the "Schooner Head Road," and now sometimes called "Main Street," and on the east by the bay or sea. The first division of the tract was made through mutual partition deeds dated January 31, 1879, by Messrs. Wigglesworth and Da Costa, the then sole owners in common. Mr. Wigglesworth took the northern and Mr. Da Costa took the southern part of the tract. In these deeds was first created and established by grant the private road afterwards called the "Livingston Road," and now to some extent the subject-matter of these suits. The divisional line of the partition was declared to be "the middle of a road fifty feet wide to be laid out one-half over the land of each of the parties hereto," and extending from the Schooner Head Road easterly 1,100 feet, to a point which is now near the westerly line of the Morrill Place.

The two dividing parties then, in the same deeds, mutually reserved and conveyed to each other, and the heirs and assigns of each, "the right to pass and repass in and over, and to lay drains and water pipes under, that part of the granted premises which is included in said proposed road; * * * the said road to be made and maintained at the joint expense of the parties entitled to use the same."

A plan of the division showing the outer boundaries, the divisional line, and the proposed private road, was made a part of the deeds, and was recorded with them. On this plan the proposed road was laid down as "50 feet wide" and 1,100 feet long.

The track thus divided was in course of time much subdivided by different and successive conveyances upon each side and to the east of the road thus established, until in the early part of the year 1892 the various lots and their owners were as roughly indicated upon this sketch, viz.:

In all these subsequent conveyances the grantor's rights and duties in this private road were transferred to the successive grantees, so that early in 1892 each owner indicated on the foregoing sketch had succeeded to the rights and duties of Wigglesworth and Da Costa, as declared in their partition deeds of January 31, 1879, above referred to. Mr. Livingston, however, had engaged with Mr. Kennedy, his direct grantee, to build the road for him.

At this stage, all the parties interested in either the fee or the use of the road became parties to an instrument of indenture drafted and dated March 1, 1892, but not finally executed and delivered till the summer of 1893. In this Indenture were recited (1) that the parties thereto were "all the parties interested, either as owners of the fee, or of easements, in a certain way fifty feet wide, * * * extending from the Schooner Head Road easterly to land of Chas. J. Morrill, being the same way mentioned in the partition deeds" of Wigglesworth and Da Costa, above noted; (2) that the parties had "agreed to change the location of said right of way, in part, to wit, in that part extending easterly from the western line of land of Sophia B. Thayer produced southerly, to the eastern line of land of Anna S. Rotch produced southerly," so that the center line of such part of the way as was agreed to be changed in location should begin to diverge a little southerly at the western line (extended) of the land of Mrs. Thayer, and strike the eastern line (extended) of land of Miss Rotch 67 feet southerly of the old center line; (3) that Mr. Livingston (the owner of the land taken to make the above change in location) conveyed to all the other parties and their assigns, as appurtenant to their several lots, "a right to pass and repass over, and to lay drains and water pipes under, a strip of land fifty feet wide in every part, the center line of which is described" (as above recited), but with the stipulation that "said right, privilege, and easement, however, shall be held and enjoyed by said parties [all the other parties] in common with the party of the first part [Livingston], his heirs and assigns, owners and tenants, of any lands to which said old way is appurtenant, and in common with any and all persons lawfully entitled to similar rights"; (4) that all easements in the land in front of Mrs. Thayer and Miss Rotch not included in the new location were extinguished. Accompanying this indenture was a plan of the way upon which were placed the words, "Right of way 50 ft. wide."

Mr. Livingston, owning the land on the south side, and Mrs. Thayer and Miss Rotch, severally owning lands on the north side, opposite the land of Mr. Livingston, mutually executed deeds in confirmation of this indenture, by which deeds each became the owner of the fee to the center line of the way in front of his land, that line being described in the deeds as "the center of a way fifty feet wide, created by a deed of indenture," viz. the one above named. In these deeds it was stipulated "that the way fifty feet wide lying...