Stillwell v. Foster

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 into 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, 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. [344] 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 preponderanee of authority but, upon sound principle. It has the recommendation of simplicity and certainty, is easily applied, •aud works no injustice; for, the purchaser knows, or should know, what he is buying before his deed is accepted. In Warren v. Blake, 54 Maine, 276, this precise question was exhaustively examined and the rule adopted. In Dolliff v. Boston & Maine, 68 Maine, 173 ; and in Stevens v. Orr, 69 Maine, 323, the question was raised and the rule affirmed. To guard against misapprehension, it may be well to state that in the learned aud exhaustive argument for the plaintiff, many cases are cited in which the conveyance was of lots upon a plan showing the way contended for, or where in the description the lot was bounded upon a way located upon the grantor’s own land and it was held that the grant carried the way. . These cases rest upon the principle that by a reference to the plan that becomes a part of the description and carries the right of way by an express grant, or as when bounded upon a way upon the grantor’s land, it is such a representation of the existence of a way material to the value of the land, as to estop the the grantor from denying its truth. Bartlett v. Bangor, 67 Maine, 460 ; Fox v. Sugar Refinery, 109 Mass. 292. These cases undoubtedly enunciate good law, but are easily distinguishable from the present. Another class of cases cited, is where the premises are conveyed by some distinguishing name, without any description by metes and bounds ; then, all parts, or appurtenances, properly included in the descriptive name, will pass. These cases are readily distinguishable from the one at bar. Another ground upon which the plaintiff claims to sustain his title is that of adverse user. It is true as the case shows, that this way has been used for more than twenty years in connexion with the plaintiff’s premises, mostly, or all of the time by tenants. But it is equally true that in 1865, and for a few-subsequent years, while Mr. Harlow and his successor retained [345] the ownership of the defendant’» stove, there was a tenant in there under Harlow and his successor, who occupied the premises on both sides. If therefore the occupation of the tenant was that of the landlord, here was an interruption of any adverse use, and since that there has not been sufficieuttimetogain a right by prescription. If the use of the tenant was not that of the landlord, then there is no pretence of title by adverse user. The result is, both grounds upon which the plaintiff bases his title fail. Plaintiff nonsuit. Peters, C. J., Walton, Libbey, Emery and Haskell, JJ., concurred.