Zemon v. Netzorg

• Citation: 247 Mich. 563,226 N.W. 242
• Decision Date: 08 July 1929
• Docket Number: No. 76.,76.
• Parties: ZEMON v. NETZORG.
• Court: Supreme Court of Michigan

247 Mich. 563

226 N.W. 242

ZEMON

v.NETZORG.

No. 76.

Supreme Court of Michigan.

July 8, 1929.

Appeal from Circuit Court, Wayne County, in Chancery; Parm C. Gilbert, Judge.

Suit by David S. Zemon against Rachel Netzorg. Decree for defendant, and plaintiff appeals. Affirmed.

Argued before the Entire Bench.George E. Brand, and Irwin I. Cohn, both of Detroit (Sidney J. Karbel, of Detroit, of counsel), for appellant.

Davidow & Davidow, of Detroit, for appellee.

POTTER, J.

Plaintiff filed a bill to establish an easement-a private right of way-across the lands of defendant from Meldrum avenue in the city of Detroit to his land and to enjoin defendant from interfering with his use of the claimed easement. From a decree for defendant, plaintiff appeals. The easement or right of way in question is a private right of way, if anything. The owners of the northerly and southerly part of lot 2, apparently by mutual consent, established and maintain a private right of way or alley between their respective holdings. Lot 1 lies east of lot 2, and if the claimed alley in question is continued open, the end of it reaches the edge of lot 1. The existence of this alley for the benefit of the owners of lot 2 is recognized by various conveyances. Plaintiff, the owner of lot 1, acquired his property in 1911. The bill of complaint herein was filed in 1925. There is nothing in the conveyance to plaintiff or in the conveyances in plaintiff's chain of title indicating he acquired an easement in or over the adjoining premises of defendant. The disputed questions must be determined by the state of facts existing when suit was commenced. Plaintiff had not then owned his land long enough to gain any prescriptive rights. He could not tack his claimed adverse use of the alley upon that of his predecessor in title, even if the use of his predecessor was shown to have been adverse. Sheldon v. Railroad Co., 161 Mich. 503, 126 N. W. 1056;Lake Shore & Michigan Southern Railway Co. v. Sterling, 189 Mich. 366, 155 N. W. 383;Wilhelm v. Herron, 211 Mich. 339, 178 N. W. 769;Robertson v. Boylan, 214 Mich. 27, 181 N. W. 989;Bunde v. Finley, 224 Mich. 634, 195 N. W. 425;Hanlon v. Ten Hove, 235 Mich. 227, 209 N. W. 169.

Plaintiff claims an easement over the adjoining land passed to him by the conveyance by which he acquired title to his property without any mention thereof in his title deed. Ordinarily no estate passes by deed which is not embraced plainly within the words of the grant. Ryan v. Wilson, 9 Mich. 262;Munro v. Meech, 94 Mich. 596, 54 N. W. 290. Plaintiff claims this case is governed by Wortman v. Stafford, 217 Mich. 554, 187 N. W. 326. In that case the land to which the right of way ran was isolated, and a right of way to it existed of necessity. Powers v. Harlow, 53 Mich. 507, 19 N. W. 257,51 Am. Rep. 154. The driveway here involved was established for the mutual convenience of the adjoining owners of lot 2, and does not constitute a way of necessity but a revokable license to use. Wilkinson v. Hutzel, 142 Mich. 674, 106 N. W. 207. In Wortman v. Stafford, supra, it is said: ‘The question of the continuity of possession and user by successive holders in privity to sustain title by prescription is not involved here.’

Neither by the common law of England nor by that of Michigan does a mere right of way constitute such a continuous easement as will pass by implication. 19 C. J. 918.

In Morgan v. Meuth, 60 Mich. 238, 27 N. W. 509, the question was presented whether a right of way across adjacent land...