Stillwell v. Foster

• Decision Date: 31 March 1888
• Citation: 14 A. 731,80 Me. 333
• Parties: STILLWELL v. FOSTER.
• Court: Maine Supreme Court

14 A. 731

80 Me. 333

STILLWELL

v. FOSTER.¹

Supreme Judicial Court of Maine.

March 31, 1888.

Report from supreme judicial court, Penobscot county.

Trespass quare clausum for closing a private way adjoining plaintiff's premises.

Barker, Vose & Barker and Chas. H. Bartlett, for plaintiff. Wilson & Woodward, for defendant.

DANFORTH, J. The plaintiff and defendant are the owners in severalty of two adjoining stores, divided by a partition wall, and fronting upon a street in the city of Bangor. In the defendant's store, and next to the partition wall, is a stairway, with an entrance from the street leading to the second story. At the head of this stairway, turning to the right, is a door in the partition wall, opening in the second story of the plaintiff's building. The tenants of the plaintiff, having occasion to go to the second story, have been accustomed to use this stairway and door, having no such means of access upon their own premises. On the 28th of June, 1884, the defendant closed up this door in the partition wall, thus preventing all access that way for the plaintiff's tenants. It is for this act that the plaintiff claims damage, claiming that he has a right of way for his tenants over the stairs. These stores were originally built by Nathaniel Harlow in 1847, with the stairs, wall, and door as they were before the defendant closed the door, and were so used until that time. In February, 1860, Mr. Harlow sold the store, now owned by the plaintiff, to J. S. Wheelwright, and in the deed the premises were described by metes and bounds, making the center of the wall the dividing line. The plaintiff now has this title. The defendant has title to the remaining premises. The plaintiff claims title to a right of way over the stairs by virtue of an implied grant under the deed from Harlow to Wheelwright. He cannot claim it as a way of strict necessity, for his building fronts upon the highway, and he can make a stairway upon his own premises, but rather as a way of convenience. Having been so built in the beginning, and so occupied both before and after the conveyance to Wheelwright, it is claimed that it has become appurtenant to and so far a part of the premises as to pass by the deed, if not by express grant, at least by implication. But there is no obscurity in the language of the deed,—no question as to the precise premises covered by it. The stairs are not conveyed, even if considered a part of the premises; and the only question is whether, under the facts, a right of way over the stairs is conveyed by implication. In this state the rule is now so well established that the test to be applied in such cases is whether the way is one of strict necessity that it is too late to change it. Nor do we think it desirable; for it seems to be founded, not only upon a preponderance of authority, but upon sound principle. It has the...