Shirley v. Crabb
| Decision Date | 20 April 1894 |
| Docket Number | 16,730 |
| Citation | 37 N.E. 130,138 Ind. 200 |
| Parties | Shirley et al. v. Crabb |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled June 22, '94.
From the Hendricks Circuit Court.
The judgment is affirmed.
G. W Brill, G. C. Harvey, E. G. Hogate and J. L. Clark, for appellants.
C Foley, for appellee.
This action was by the appellants, and its object was to quiet title to an easement.
The only question in the case arises upon an exception to one conclusion of law stated upon the facts specially found.
From the special finding it appears that in the year 1873 Homan and Piersol owned, as joint tenants, a part of lot 17, block 19, in the town of Danville, fronting east 42 1/2 feet on a public street, and extending west to an alley, with an additional width upon said alley. While so owning the same they erected thereon a double building, two stories high, the division wall between the two parts of said building being so constructed that the center thereof was 21 1/2 feet south of the north line of said part lot and 21 feet north of the south line thereof. On the south side of said division wall was constructed a stairway from said street to a landing upon the second floor of said building, and another stairway from the rear of that part of the building on the south of said division line, and on the south of said division wall was so constructed as to reach said landing. From said landing was made an entrance to the second story of that part of said building on the north of said line, and through said entrance, and by said stairways was supplied the only means of ingress and egress to and from the second story of the part of said building north of said division line. By numerous conveyance, the appellees became the owner of that part of said property lying south of said division line subject to a reservation in each deed of conveyance of such a right of way over the front and rear stairways so constructed and in a hall running north and south through the second story of said building, for the proper use and occupancy of the second story of that part of said building on the north of said division line. By deeds of conveyance, the appellants became the owners of the real estate north of said division line, together with said right of way, and before and after such conveyances said stairways were continuously used openly and freely for the benefit of the appellants' part of said building until the 28th day of August, 1891, when said building and the parts thereof owned by both the parties herein, together with said stairways, were wholly destroyed by fire without the fault of either of the parties. Since the destruction of said building, the appellee has erected upon his part of said real estate a two-story brick building, occupying the entire width of his said real estate, excepting one inch along the north line thereof, or along the said dividing line between his property and that of the appellants. On the north side of the building so constructed, the appellee has erected a stairway from said street to the second story of said building. The appellants contemplate the erection, at an early date, of a two-story building of the character of that so owned by them and so destroyed, and they desire to avail themselves of the use and privileges of stairways of the character and for the purposes of those so existing prior to the destruction of the former building. The right so desired is denied by the appellee.
Upon the facts found, the court stated as conclusions of law, first, that the appellants, by their purchase and the conveyance to them, acquired an easement in the nature of a right of way over said stairways and hall as they existed before the destruction of said building, and, second, that by the destruction of said building said easement was wholly lost and extinguished.
It is to this second conclusion that the appellants except and insist that they held an easement not to be lost by the destruction of the buildings. This position necessarily involves the claim that the appellants' rights were more than a license to use the stairways and hall, and that their interest in the property of the appellee was an easement attaching to the real estate, and continuing until extinguished by some act of the owner of the dominant estate.
The appellee contends that the conclusion of the lower court is sustained in the principle that prevails with reference to those mutual easements arising from the construction of a wall upon the dividing line between properties and used by the owners in common for the support of their respective buildings. In such cases the rule seems to be that in the absence of express agreement there can be, by implication, no mutual easement of perpetual support applicable to future structures. Sherred v. Cisco, 4 Sandf. (N. Y. Sup.) 480; Partridge v. Gilbert, 15 N.Y. 601; Pierce v. Dyer, 109 Mass. 374; Antomarchi's Exr. v. Russell, 63 Ala. 356; Hoffman v. Kuhn, 57 Miss. 746; Heartt v. Kruger, 121 N.Y. 386, 24 N.E. 841.
But the right of the appellants possesses none of the elements of mutuality. It is wholly beneficial...
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