Smith v. Dennedy

• Decision Date: 01 October 1923
• Docket Number: No. 14,April Term.,14
• Parties: SMITH et al. v. DENNEDY et al.
• Court: Michigan Supreme Court

224 Mich. 378

194 N.W. 998

SMITH et al.

v.DENNEDY et al.

No. 14, April Term.

Supreme Court of Michigan.

Oct. 1, 1923.

Appeal from Circuit Court, Wayne County, in Chancery; Henry A. Mandell, Judge.

Suit by J. Henry Smith and others against Michael Dennedy and others. From a decree for defendants, plaintiffs appeal. Affirmed.

Plaintiffs Smith and Anderson are lessees under long-term leases of the southeasterly 23.35 feet in front and 24.18 feet in rear of lot 21, Governor and Judges' plan of city of Detroit. Plaintiffs Hudson-Webber Land Company, Edward C. Van Husan, and Kate M. Van Husan, his wife, are lessees under long-term lease of the balance of lot 21, and are the owners in fee of adjoining lot 22, except the easterly 10 feet thereof. Defendant Dennedy is the owner of the easterly 10 feet of lot 22, and also of the westerly 28.40 feet of lot 23. Defendant Jones is his lessee, and defendant Security Trust Company is trustee in a mortgage on this property. On March 11, 1871, the executors and trustees of the estate of Alonzo Reed, deceased, then owner, conveyed to Hoyt Post and Helen D. Post, his wife, lot 22, excepting a strip 10 feet in width on the easterly side thereof. It would seem, although not definitely fixed in the proof, that Maria Reed, wife of Alonzo, and one of the executors and trustees under the will, was devised this strip of 10 feet, and that she then owned in her own right the westerly 28.40 feet of lot 23. At this time the Reed estate also owned lot 21. On March 15, 1871, Post and wife and the executors and trustees of the Reed estate entered into an agreement, afterwards recorded, for the establishment and maintenance of a private alley between them, each furnishing a portion of the land therefor. It extended from Williams street (now Witherell) to the easterly 10 feet of lot 22. This private alley has continued to exist until the present time.

The deed does not appear in the record, but it does appear that Edward H. Ross acquired title to the land now owned by defendant Dennedy from Maria Reed. This was prior to July 19, 1902, the date of the jurat to the amended bill of complaint, to which we shall now refer. Differences arose between Richard W. Allen, then owner of the lands of which plaintiffs Smith and Anderson are lessees, and Ross and others, growing out of the use of the private way, and Allen instituted suit against them. April 11, 1904, a decree was entered, determining that Ross acquired no rights in the alley under the agreement of March 15, 1871, between Post and wife and the representatives of the Reed estate, and that he had no rights in the alley at all. On July 26, 1904, this decree was amended; the amended decree likewise determining that Ross had acquired no rights under the agreement of March 15, 1871, but provided:

‘Fifth. The decree heretofore entered in said cause is hereby amended so as to read as follows: It is further ordered, adjudged, and decree that the defendant Ross, as the owner of the easterly 10 feet of said lot 22 has acquired a prescriptive use of the private way, as established by this decree, and is entitled, for himself and tenants, with the others in interest, to the uninterrupted use of the same; but such prescriptive right shall give him no right to the enforcement of any of the provisions of the deed establishing said private way.’

It may be inferred from the files in that case that this amendment to the decree was made in compromise, to save an appeal. The present bill is filed to quiet title to the land now used as a private alley and to restrain defendant Dennedy from its use. From a decree dismissing plaintiffs' bill and granting defendant Dennedy affirmative relief, plaintiffs appeal.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Oxtoby, Robison & Hull, of Detroit, for appellants.

Douglas, Eaman, Barbour & Rogers, of Detroit, for appellee Dennedy and Security Trust Co.FELLOWS, J. (after stating the facts as above.

The crucial question in the case is the character of the easement fixed by the amended decree of July 29, 1904, whether an easement appurtenant or an easement in gross. Incidentally the extent of the easement is involved with the further question of whether defendant and his predecessor in title has acquired rights by adverse user since the entry of the decree. While some courts look with disfavor upon and decline to recognize easements in gross, strictly speaking (9 R. C. L. 739; 32 Yale Law Journal, 813), this court recognizes their existence, and the distinction between them and easements appurtenant. In the recent case of Stockdale v. Yerden, 220 Mich. 444, 190 N. W. 225, where the party had reserved standing timber with the right of removal for a certain period, this court held under the circumstances of the case that the right was a personal one, not assignable, and an easement in gross. The distinction between an easement appurtenant and an easement in gross is pointed out in Corpus Juris:

‘An easement appurtenant is defined as an incorporeal right, which, as the term implies, is attached to and belongs to some greater or superior right; something annexed to another thing more worthy which passes as incident to it. Easements appurtenant inhere in the land, concern the premises, and are necessary to the enjoyment thereof. They are incapable of existence separate and apart from the particular messuage or land to which they are annexed, there being nothing for them to act upon. They are in the nature of covenants running with the land,...