Providence Tool Company v. Corliss Steam Engine Company

BraytoN, C. J. After making an analysis of the bill of complaint, the counsel for the plaintiff desires not to be misunderstood in stating the ground of claim, but states that the plaintiffs’ claim to restrain the defendants from interfering with the enjoyment of the way in question, is upon the ground that, at the time of the execution of the deed of May 6, 1853, of the lot of land to the predecessor in title of the plaintiffs, the way in question had been created, was already existing, and being necessary to the enjoyment of the estate conveyed, passed to the grantees as a way appurtenant to that estate. *571 It is not questioned that a way, or other easement existing, as appurtenant to an estate, passes upon a conveyance of the estate to which it is appurtenant, as incident, and that, though it be not named. It is equally true, that if a way or any other easement is necessary to the enjoyment oí the thing granted, it will pass with the estate by implied grant as an appurtenance, but in that case necessity only will carry it. It is not claimed here that this way would pass on the ground of necessity only, and that the 'way was essential to the enjoyment of the estate granted. , It may also be assumed, and 'all the cases agree, that so long as the estate claimed as dominant and the servient estate are in the same owner, there can be no legal easement, neither portion can be deemed either dominant or servient to any other, but all parts are alike servient to their common owner and lord. The way here in question is in the argument claimed, not as a way which in part existed, when the estate had before been in different owners, and had by unity of title become extinct, but as one newly created by the disposition of the owner of the two tenements. In Kenyon v. Nichols, 1 R. I. 411, and in Evans v. Dana, 7 R. I. 806, the general doctrine is that, upon the severance of a heritage a grant will be implied of all those continuous and apparent easements which had been, in fact, used by the owner during the unity, though they had then no legal existence as easements. Grale & Whately state the same rule. The rule requires that the easement, to pass as such by implied grant, must be continuous and apparent. It must be attended with some alteration of the tenements which in its nature is obvious and permanent, sometimes expressed in other words ; that the easement must be apparent, the alteration must be such as may be seen, on inspection, to be adapted to the use of the estate to which it is annexed, and to be intended for its use. It must be continuous; this is the term used. This is explained in the books to mean an easement to the enjoyment of which no act of the party is necessary, and the instance given of such is a spout, which is attached, casting the water, whenever it falls, upon the adjoining estate without any act done, and *572 existing independent of any act of user. So of a watercourse, whether natural or artificial; water pipes, to bring water upon or carry it off the premises. These are distinguished from the non-continuous, which are such as do require an active interference to every instance of enjoyment; and the example given of such an easement is a way which can be enjoyed only by actual use by the party, as by travelling on it. Both these, the continuous and the non-continuous, may be granted and annexed to the same estate. Upon the unity of title they would both cease to exist as easements. Upon the severance of the estate the continuous would revert and pass by the conveyance, but the non-continuous would not revert or pass but by a new creation. This distinction, and this result, is recognized in the earlier and later cases upon the subject. It is not sufficient that the way may have been travelled; that it is apparent that it has been travelled; that there is a marked path for travel upon the land. There is said to be an exception, however, in the case of a way, if it may be termed an exception, that in order to the revival it must be one of necessity, not one of mere convenience ; and in some cases it is said that it must be such as would have passed as a way of necessity, supposing it never to have -been before used or existed as an easement. It was said by Bayley, J. in Brown v. Rhodes, 1 C. & M. 438 ; “ If a-party means to grant a way which is not essential to the enjoyment of the premises demised, he must use the proper and apt words for that purpose. In this case such a way is not essential to the enjoyment of the premises demised.” The question there was, whether a way that had been used passed under the term, “ all ways appertaining and belonging.” A door opened upon an open space extending from the street, beyond the door, and the occupant of the premises had travelled over this space from the door to the street; but the court held that no way passed by the conveyance. Blackburn, J., in another case, says: “ We do not think, that on a severance of two tenements any -right to use a way which *573 during tbe entity may have been used and enjoyed in fact, passes to tbe owner of the assevered tenement, unless there be something in the conveyance to show an intention to create a right to use those ways de novo." We agree to what is said in Worthington v. Gumson, that in this respect there is- a distinction between continuous easements, such as drains, and discontinuous, such as a right of way. In that case a way was in fact necessary to the enjoyment of the estate granted, and there had been a way actually travelled; and the court held that the way of necessity which existed was the one which had been theretofore used and travelled. In Lapman v. Miles, 2 N. Y. 508, cited by plaintiffs, this distinction between continuous and non-continuous is also recognized and applied. The continuous are defined to be self perpetuating, independent of human intervention ; as the flowing of streams of water, which would pass by a deed as appurtenant. The non-continuous, those which are dependant upon human intervention for their enjoyment; as ways which do not pass unless essential to the enjoyment of the estate conveyed. In the case of Phillips v. Phillips, 48 Penn. 178, cited by the plaintiffs, the court, speaking of servitudes which pass by deed, under the term appurtenances, say by all the authorities the rule is confined to cases of servitudes of a permanent nature, notorious, or plainly visible, such as from their character it may be presumed that the owner was desirous of their preservation as servitudes, evidently necessary to the convenient enjoyment of the property, and not for mere pleasure. The case before the court was this: there were two estates, farms owned during his lifetime by the father, one of which he himself occupied till his death ; the other, in which the way was claimed to be appurtenant, was during his father’s life in the occupancy of his son, for whom he intended it, and to whom he devised it by his will. During the life of the father and the occupancy of the son, a way had been used across the estate occupied by the father, from his son’s estate to the highway, a way highly convenient but not of absolute necessity. This way, during this occupancy and during the father’s life, had been fenced out and extended from the son’s *574 dwelling to the highway, and so could have been used only to pass to and from that estate, and for the use only of that tenement. It was apparent that it could be used for no other purpose, and yet was intended to be used and was used. The plaintiffs’ case is not brought within any one of these cases by the evidence before us. A way had existed from Charles street, along the front of the building and works of the grantors, northerly, and extending to the gate, opening into the foundry yard, where it terminated. This way had been used down to the time of the contract of sale by the grantors only, and its point of termination was distant from the line of the land conveyed quite a number of feet. Between these points there was an elevation of sand and gravel, which prevented all travel and passing towards the land conveyed, and it extended not only to the grantees’ land but some distance beyond the southerly line into it. After the making of the contract of sale, and before the execution of the deed, the grantees commenced excavating this elevation, and as the earth was removed, it was used in filling their low lauds, and, as the witnesses state, the whole of it was neces sary to fill up and grade the land for their works. It was all used for that purpose except the sand found suitable for mortar, which was used in the construction of their works, and some gravel left to the last for grading and hardening the surface. These-excavations began immediately after the contract, some to lay the foundations of the buildings, and upon the land conveyed. The excavation was extended from that side toward the grantors’ land. This was near the north line of the purchase ; but upon land of the grantors, and in a line with the western side of the way before used, a house stands upon this elevation. The excavation was carried on to the west of the house and along by it, but leaving it untouched, and continued to the grantors’ land. There were excavations also on the grantors’ land, from the foundry gate where the way terminated, northerly towards the house. Before reaching it the line of excavation turned off in an easterly direction, and was continued, wholly on the land of *575 tbe grantors, to the West Eiver road on which the grantees’ land bounded wholly on the east. It was level enough for teams to pass through and reach West Eiver street, without coming to the land of the grantees. This was the first opening through the hill of sand and gravel through which teams or carriages could pass, for the termination of the original way. The opening was made in this direction as one that could be made in the shortest time, and requiring the least amount of labor to make it passable. It was made with a view to enable the grantees to bring through, by that way, the material for their buildings and works. It was desirable to the grantees to get, by this way, into the public highway, upon which their estate fronted, and as their buildings were to front, and then to use the West Eiver street to their lands. It is of some importance, though not controlling, to know when the earliest way became passable, and began to be travelled. It is not that which is now claimed. It is not continued to the grantees’ land, nor is it upon the line of the original way produced. The way is claimed as a way directly from the termination of the old way to the grantees’ land, without entering West Eiver street. This way into West Eiver street could not have been opened for travel till about the time of the execution of the deed, and was the only way, for a considerable time, and until after the deed was executed. Th.e evidence shows this quite clearly. S. A. Nightingale says, that “ after the contract of sale was completed they proceeded to build the road ; they proceeded at once to excavate, to make their own road ; that the house before mentioned was upon a hill fifteen feet high, and this had to be moved in order to continue the way, because the building would be left twelve or fifteen feet in the air. That building was left several weeks, and they made a passage east of it for our teams. We left that to the latter part of the grading and graded round it. Excavated simply a track that we could draw stone through, say a dozen or fifteen feet wide, leaving half the hill or more till we needed the gravel. E. Waterman says, “The excavation proceeded immediately *576 and in haste; that it was necessary to remove the mound of earth to complete the way. The way we opened as soon as we could get it open, because they wanted it for teams to go through,” but he cannot state the time when it was opened. E. J. Nightingale says, “ They used the way from April, 1853 ; began to dig on the west side of the lot, and very soon after dug' a narrow, way through our land to West River street, so that they coud get their teams passing there ; dug this some time in April. This way passes up through our land to West River street alongside the old house; when they got to that point, they were right close to the Forge and Nut Company, up to their land.” Josiah Simmons speaks of this same way up through to West River street, and says he was there the last few days of April; found men at work then, but there was then no passage-way. After he got up to this bank, he could go no further with his horse. He himself commenced work early in May, not more than a week or ten days after the former visit there ; considerable advance along next the foundry building at first visit. ' John Ash says, “First commenced cutting down the hill somewhere about middle of April, but not till after he procured his tools for that purpose.” This was shown by another witness-to have been April 21st. “It was several days after I got the tools that it was about three weeks when he got through the hill, so that they could drive-through the turnout; after that the way was open for teams, market wagons, and every thing. It was about three weeks before he could drive a tip-cart through from the foundry gate to this land, before he could see day-light as he said, through into Corliss & Nightingale’s yard, He could drive round the hill, but could not do anything till he made a pass-way through this hill, and that took about three weeks. W. S. Haines speaks of the same way, and says he recollects distinctly an excavation on the east side of the house, and within about twenty feet of it, and that there was no difficulty in getting round between the machine shop and the pattern shop through to West River street before twelfth of April, when he made the surveys. He speaks of no other way except into West River street. *577 The deed was executed on the sixth day of May, 1853. At that time, by the testimony, the only way which could be travelled, instead of connecting with the estate conveyed by the deed, passed up entirely on land of the grantors to West River street, on which the estate conveyed fronted, and the grantees passed and transported their material, partly by this way and partly by West River street, to their premises. It had not been used for twenty years under claim of right so as to create a title by user. There is no case referred to, and none on the books, which hold that a way not connected with another, but absolutely disconnected at the time of the grant, has been held to pass by the term appurtenance. The second point in the plaintiff’s brief as stated, — the act of Corliss & Nightingale, accompanied by their declarations, together with the fact that they and the grantees actually opened the way to the premises sold, — amount to a declaration that the way is for the use of the premises granted, and so establish it as an appurtenance and so pass by the after conveyance of the land. It may be sufficient to say upon this point, that the way had not been opened, at the time this deed was executed, to the complainants’ land ; that any declaration of any intent that it should be, or that it should be made appurtenant to the estate, are not evidence to -pass an interest in any estate, nor can any act of theirs, short of their deed, pass any such interest. The doctrine of dedication to public uses, which the plaintiffs seek to apply to this case, furnishes no support to it. It may be that a public way may be proved, in some cases, by the same kind of evidence as would prove a private way. Twenty years’ use may establish either. But that in all eases the same rule can be applied is not maintainable. And no case has been suggested where a private way has been established, by an act of the owner of the estate, however unequivocal, and a use for any length of time short of twenty yeai'S, other than the ways of which we have been speaking, which are under the conditions before stated. A public way may be given to the public without deed, *578 because by deed it cannot be vested in them, but an individual right must be by deed. The plaintiffs’ further point is, that the defendants are estopped to deny the existence of this way because they had agreed that the grantees should enjoy such a way; that no consideration had been paid for it, and that the grantees have entered into the land and way, and expended large sums of money upon the faith of the agreement for the way. _ There is nothing in the facts for this to rest upon. There has been no expenditure which would not have been made without such agreement, and must necessarily have been made in the construction of their own works. Their agreement was by parol, if any, and was merged in-the deed. Bill dismissed with costs.