Burdine v. Sewell

*383 OPINION. Campbell, Circuit Judge (after stating the facts). The appellant did not file assignment *of errors. The appellees.have not moved the court to dismiss because of this omission. An examination of the entire record indicates that there is merit in the appeal, and this court will not, ex mero motu, dismiss the appeal because of this technical omission. *■ The appeal is taken from a final decree rendered after consideration of the case upon bill of complaint, answer and testimony. There being no assignment of errors, we will proceed to consider the case as a whole, as shown from the record, to determine whether or not.the court below was in error in entering the final decree. On the former appeal this court had before it only the bill of complaint, an ex parte affidavit filed by complain-, ants, and the order of the court below denying the injunction and dismissing the bill of complaint. In reversing the case on the record before us at that time, we said, in the body of the majority opinion: “We regard the agreement as one creating an easement over Lots 1 and 2. Each lot is burdened by the agreement with an easement over it for the benefit of the owner or occupant of the owner, one which may be extinguished of *384 course by abandonment or mutual agreement.” John Sewell & Bro. v. Burdine, 80 Fla. 718, 87 South Rep. 144 (test). In considering the case on this appeal, we have before us the case upon its merits, as presented by the record, consisting of the bill of complaint, answer and testimony. The final decree of the court below perpetually enjoins and restrains the respondent, John M. Burdine, the lessor, and John B. Reilly, the owner of Lot One (1) of Block One Hundred Twenty-two (122), from closing, or attempting to close, the alley-way described in the bill of complaint, or in any manner whatsoever interfering, or attempting to interfere, with the rights and privileges of the complainants in the use of such alley-way. In other words, the decree adjudicates the right and privilege of the complainants in Lot 1 as being a permanent easement. It will be necessary, therefore, for use to determine from all the facts and circumstances as found in the entire record of this case, whether the complainants have a permanent easement, or whether their right to the use of the alley is a license or privilege of limited duration. An easement has been defined to be “a privilege without profit, which the owner of one tenement has a right to enjoy in respect to that tenement in or over the tenement of another person, whereof the latter is obliged to suffer or ■ refrain from doing something on his own tenement for the advantage of the former.” Jones on Easements, Sec. 1; 9 R. C. L. 735, par. 2. The essential elements or qualities of easements are: “first, they are incorporeal; second, they are imposed upon corporeal property; third, they confer no right to a participation in* the profits arising from such, property; fourth, they are imposed for the benefit of corporeal property; fifth, there must be two distinct tenements, the dominant, to *385 which the right belongs, and the servient, upon which the obligation rests.” Jones on Easements, Sec. 1; 9 R. C. L. 735, par. 3. “An easement is distinguished from a license, though it is often difficult to make out whether a particular case is the one or the other. There are, however, certain fundamental principles underlying most cases, which enable courts to distinguish an easement from a license, when construed in the light of surrounding circumstances. An easement implies an interest in land, which a license does not. ’ ’ Jones on Easements, Sec. 65. “An easement being an interest in land, can be created only by grant, the existence of which may be established by the production of a deed expressly declaring it, or may be inferred by construction, from the terms and effect of an existing deed, or evidence of the grant may be derived from its having been so long enjoyed as to be regarded as proof that a grant was originally made, though no deed is produced which contains it. In other words, there are three ways in which an easement may be created, first by express grant; second by implication; third, by prescription.” 9 R. C. L. 745, par. 14. There is some contention that the Sewells have an easement, by prescription, over the alley in controversy; but this contention is untenable. It is alleged in the bill of complaint, admitted in the answers, and proved by the testimony, that the use of the alley by the complainants was a permissive use. One who secures from the owner of property authority or permission to use a passageway over such property, and continues the use thereof under such permission, he cannot successfully claim such to be a way or easement by prescription. 19 C. J. 887, par. 53; 9 R. C. L. 778, par. 37. “Where a deed granted the use of a passageway so long *386 as it was used as a passway, and grantee used in the way under the deed and did not repudidate the license granted in the deed, or apprise the grantor that he was using it under a claim of right, such use could not ripen into a prescriptive right.” Reese Howell Co. v. Brown, 48 Utah. 142, 158 Pac. Rep. 684. Whatever right the complainants have in the alley over the South end of Lot 1, is given them in the written agreement attached to the bill of complaint as Exhibit “A” and quoted in full in the statement of this case. An examination of this agreement reveals that it was made between, and apparently for the benefit of, Fort Dallas Land Company, a corporation, and John Sewell, and their respective tenants. It provides that the alley ‘ ‘ is and shall remain a private way for the use of the said Sewell and said'Fort Dallas Land Company and their tenants,” etc. There are no words in the agreement to indicate that the rights of the respective parties therein are to extend to their successors in title. In other words, the covenants contained in the agreement are personal covenants, rather than covenants running with the respective lots. It appears from the testimony that the complainants had, from the time they built their store on Lot 2, used the open space to the rear of Lot 1 in reaching Avenue C from the rear of their store. It also appears that this was permitted by the Fort Dallas Land Company, and that the alley was also used by its tenants. Some time prior to December 26, 1905, a fence was constructed along the East line of Lot 1, which closed this open space that had been used as a passageway. The complainants then approached the Fort Dallas Land Company, through J. R. Parrott, its President, complaining of the inconvenience they were suffering by re.ason of the closing up of this alley they had been using across Lot 1 to reach Avenue C. This con *387 ferenee resulted in tbe execution of the instrument under which the complainants now claim an easement. Was it the intention of the parties to this agreement to create a permanent easement appurtenant over the respective lots, or was it intended to limit the duration of the right of passage over the alley provided for ? It appears from the agreement that the Fort Dallas Land Company agreed “to allow to remain open an alley ten feet wide along the south line of Lot One (1) of Block One Hundred and Twenty-two (122), in the City of Miami, and that said Sewell may, without any further rent, have the right of passage over said alley to and from his Lot Number Two (2) of said Block One Hundred Twenty-two (122), for and during such time as said Sewell keeps open and allows said Company a right of way and easement over an extension of said ten feet alley across the south end of.said Lot Two (2) of Block One Hundred Twenty-two (122),” etc.; and that said Sewell agrees to open and allow to remain open across the south end of Lot Two (2) of Block One Hundred Twenty-two (122), a ten-foot alley, and to give said Company and its tenants an easement over the alley without rent or charge, for so long as the alley over Lot One of said Block remains open,” etc. (italics supplied). », From above quoted extracts of the agreement it does not seem to have been contemplated by the parties that the privilege granted to each was to be permanent; but rather, that same might be terminated by either party. Sewell granted permission to the Company to use the alley over his lot “for so long as” the Company kept open and permitted him to use an alley on its lot. The Company promised to keep open the alley on the south line of Lot 1 “for and during such time” as Sewell kept open and allowed *388 the Company a right-of-way and easement over an extension of said ten-foot alley across the south end of Lot 2. The words “for” and “during” as used in this agreement, have the same meaning. (Shannon v. City of Omaha, 72 Neb. 281, 100 N. W. Rep. 298, 299). And they are both used here for the purpose of creating a limitation upon the duration of the right to use the alley. The expressions, “for and during such time,” and “for so long as,” are equivalent to the term “temporarily.” State v. Cunningham, 75 Vt. 332, 55 Atl. Rep. 654 (text). Under the agreement, all that Sewell need do to revoke the privilege granted the Company, was to close the alley on his lot. If the Company desired to revoke the privilege granted Sewell, it had only to close the alley on its lot. Sewell evidently understood that under the agreement the Company had the right to close the alley over Lot 1, and, therefore, he only agreed to allow the Company the right to an alley over Lot 2 “for so long as” the alley on Lot 1 remained open. There is a further provision of the agreement which indicates that it was not the intention of the parties, that the alley provided for be an easement appurtenant to and following the respective lots. This provision is as follows: “It is understood and agreed that the alley or way herein-above provided for is and shall remain a private way for the use of said Sewell and said Fort Dallas Land Company and their tenants.” If the parties really intended to grant to each other a permanent easement appurtenant to the dominant tenement in the respective lots, it is possible that, under the provisions of Section 3796 of Revised General Statutes of Florida, the words “heirs, successors and assigns,” etc., need not have been used, as that statute provides as follows: “where any real estate shall hereafter by conveyed *389 or granted without there being used in the conveyance or grant any words of limitation, such as heirs or successors, or similar words, such conveyance or grant shall be construed to .pass the fee simple or other whole estate or interest which the grantor had power to 'dispose of in the real estate conveyed or granted, unless a contrary intention shall appear in the conveyance or grant. ’ ’ As we have already remarked, the agreement under consideration has no provisions that the rights granted therein pass to the successors in title of the respective parties, and had the agreement merely granted the privilege named, to the respective parties, without any words of limitation, it would probably have passed by such conveyance to the successor in title, and thus have created an easement appurtenant. But, as has been noted, the parties contemplated no such thing as their successors in title being entitled to the rights provided for. On the contrary, they fixed a limitation to the duration of their respective rights to use the alley by the terms of the agreement. The circumstances under which this agreement was made, and the relationship between the President of the Fort Dallas Land Company and Sewell, indicate that the Company only intended to grant a personal privilege to John Sewell. It appears that J. R. Parrott, the President of the Company, and John Sewell were on very intimate terms, both having been in the employ of the East Coast Railway Company for a number of years. It further appears that Mr. Parrott was a business man and an attorney-at-law, a man who had' evidently had considerable business experience. He of course must have known that a -grant of an easement should be drawn and executed with the same formalities as a deed to real estate, an easement being an interest in land. He also knew that John Sewell and E. G-. Sewell were co-tenants of Lot 2, and that if an easement appurtenant was to be granted the Company over Lot 2, it should have been *390 executed by both co-tenants, and if an easement appurtenant was to be granted to the owners of Lot 2, over Lot 1, the grant of such easement should be made to botli co-tenants. He also must have known that grants of easements appurtenant, being the same as grants to real estate, should be recorded, and that before such recordation there should be a proper acknowledgment. Yet, the instrument he prepared, or had prepared, only granted rights to John Sewell, one of the co-tenants, and the right granted the Company were made only by John Sewell. There was not even a'blank certificate for acknowledgment attached to the agreement. These facts and circumstances indicate very forcibly that the agreement was intended to give, not an easement appurtenant to the lots described, but only a personal license to the respective parties to use a way, each over the lot of the other. It is true that John Sewell testified that Mr. Parrott, the President of the Fort Dallas Land Company, said, “Yes, John, I will sell you ten feet for a dollar, and fix it so they cannot take it away from you. Write me a letter, sending me a dollar and I will send you a deed covering the ten feet. ’ ’ However, the instrument sent by the Company and received, accepted and relied upon by the complainants, is not a deed to the ten feet right-of-way, but an agreement, granting reciprocal personal privileges to the parties thereto, or a revocable license. “Where the parties have fully manifested an intention to limit the duration of the right of passage, it is the duty of the courts to enforce that limitation and not to disregard it by giving a perpetual right where only a determinable one was intended.” 19 C. J. 969; Jones on Easement, par. 370; Batchelder v. State Capital Bank, 66 N. H. 386, 22 Atl. Rep. 592; Reese Howell Co. v. Brown, Supra. In the case of Batchelder v. State Capital Bank, supra, *391 there was a clause in the deed under consideration, granting a passageway over a certain lot, so long as it was used as a passageway by the bank. The Supreme Court of New Hampshire, in considering this clause, says: “The stipulation in the deed was a grant for a conditional use of the passageway, and the plaintiff’s right to its use ceased when the bank ceased to use it.” (See 22 Atl. Rep. 593, text). The same court, in the same case, very aptly said: ‘ ‘ The parties having defined the extent of the right, it cannot be enlarged by implication,” citing Warden v. Batch, 59 N. H. 468. “A conveyance of land, which was accessible from the public highway, provided that the grantee might have the right to use in common with others as a passway, a strip of land 11 feet wide, lying between the land conveyed and the grantor’s land, so long as the same was used by grantor for the same purpose. Held, That no easement was cre'ated by implication, and the pass-way might be closed as such, at the pleasure of the grantor of the land conveyed.” Batchelder v. State Capital Bank, supra. “Provisions in a deed that the grantee shall construct a drive way along the side of the granted lot, which the grantors shall have the right to use for access with vehicles to their adjoining lot, so long as friendly relations exist between the parties, is but a personal covenant in the nature of a license, terminable on friendly relations ceasing.” Gerling v. Lain, _ Ill. _, 109 N. E. Rep. 972. (Italics supplied.) As has already been observed, there is nothing in the agreement in the case at bar that would burden either lot as the servient tenement to the other in the hands of a subsequent vendee of such lot. Neither is there anything in the agreement that gives the vendee of either lot a doninat tenement in the alley across the other lot. In *392 other words, the covenants in the agTeemezit under consideration do not ruzz with the respective lots described. “A coveizant is said to ruzz with the land when either the liability to perform it or right to take advazitage of it passes to the vendee or other assignee of the lazzd.” 7 R. C. L. 1099; Gerling v. Lain, supra. “To authorize the ezzforcement of a personal covenant agaizzst the graiztee or assignee with notice of it, the instrument must be clear, uzzambiguous and certain, aizd of such a character that a court of equity cazz make azi efficient decree azzd enforce it. ’ ’ Gerlizzg v. Laizz, supra. “Where a deed granted the use of a passageway 'So long as it shall be used as a passageway, ’ the words ‘ So long as ’ implied a limitatiozz in the grazzt, azzd conferred the right to terminate the use ozz the grantor, sizzce while the grantee may at azzy time relizzquish his right of passage, without consulting the grantor, the grantor’s right to terminate must be expressed izz the instrument.” Reese Howell Co. v. Brown, supra. In. the case of Reese Howell Co. v. Brown, supra, the Utah court was cozzsidezdng a deed containing substantially the following clause: “Also a right-of-way along azzd through that certain alley or passageway situated 155 feet West of the Southeast corner of Lot 1 aforesaid (being in the West end and forming a part of the bzdck building now owned by the grantor herein) and running North from Fifth Street, as long as the sazzze shall be used as a passageway, and the gates of which shall be closed from 6 P. M. uzztil 7 A. M. each day, and the grantee herein is allowed the privilege of entez-iizg azid passing through said alley at any time night or day, and be provided with a key to unlock the same, and said grantee is to see that the same is locked during the time herein mezztioned whezz used by him or by his authority. ’ ’ *393 In a very interesting discussion, the supreme court of Utah, interpreting that agreement, says (see page —, 158 Pac. Rep.) : “There certainly can be no dispute that the words in the grant, ‘ so long as, ’ etc., clearly imply a limitation upon the duration of the right of passage. ’ ’ And further, “We think that where, as in the case at bar, the parties have all clearly manifested an intention to limit the duration of the right of passage, it is the duty of the courts to enforce that limitation and not to disregard it by giving a perpetual right where only a determinable one was intended. If therefore we consider the language of the deed when applied to the subject-matter of the grant, and in the light of what we have already stated, there seems but one conclusion permissible, and that is the right of passage through the passage-way or alley by the grantee and his successors continued ‘so long as the same shall be used as a passage-way’ and no longer, and by that was meant ‘so long as’ the grantor shall use it or permit its use, and not so long as the grantee shall use it, nor yet that it shall continue until terminated by the joint act of both.” (Italics supplied.) After considering the entire record in this case, we think, and we so hold, that the agreement between the Fort Dallas Land Company, a corporation, and John Sewell, did not burden the respective lots with a permanent easement appurtenant, but that it gave to the respective parties a personal license or privilege of limited duration, to use the alley provided' for, and that it was subject to be revoked by either party at any time. That being the case, Fort Dallas Land Company could revoke the license by conveying the land to another, and it or its successors, or its or their tenants, could revoke it by closing the alley on Lot 1. Counsel for appellee contends, that if this agreement was only a license or personal privilege which could be revoked. *394 at the pleasure of the party granting it, it was useless to have reduced the agreement to writing, and the fact that the parties saw fit to put their agreement in writing, shows that an easement appurtenant was intended. There are numerous instances where parties, in granting a license for the use of, or entry upon land, have reduced their agreements to writing. The fact that the parties to the agreement under consideration in this case reduced their understanding to writing, does not make it other than that which its language indicates, that is, as we have said, a personal license or privilege in the use of the alley. “An express license may be created by deed or other instrument in writing, or orally.” Enc. of Law (2d ed.) vol. 18, 1131. There were reasons which made it important that the agreement between Fort Dallas Land Company, a corporation, and John Sewell should be reduced to writing.' In the first place, the. building on the Company’s lot was occupied by tenants; the company had its offices in another city; there were rights which its tenants were to have, and there were rights which Sewell was-to have over the property occupied by these tenants; should any question arise as' to rights of either in the use of the alley while it remained open, this written agreement could be resorted to. Then, in the second place, Sewell was to prevent the use of the alley by adjoining owners, unless like privileges were granted by such owners, over lots owned by them. Furthermore, Sewell was to see to the erection of a gate, etc. There were so many provisions and conditions in the agreement, that to prevent misunderstandings and confusion, and to keep clearly in mind all the provisions of the agreement, the writing was not only important, but we .may say necessary. *395 The respondent, John M. Burdine, as the lessor of Lot 1 of Block 122, North, had the right to close the alley, and thus revoke the license or privilege of Sewell. Under his lease he had the right to utilize the entire lot for building purposes. The court below, therefore, erred in granting the final decree permanently enjoining him and John B. Reilly, the owner, from interfering with the alley over the lot. The conclusion we have reached makes it unnecessary to consider other questions raised by appellants in their brief. The decree of the court below is reversed with directions to dismiss the bill of complaint. Reversed. Whitfield and Terrell and Buford, J. J., concur. Ellis and Strum, J. J., dissent. Brown, C. J., disqualified.