Wilder v. Wheeldon

The opinion of the court was delivered by Yeazey, J. The plaintiff and defendant were each owners and in possession of adjoining premises in Ludlow village. The plaintiff’s premises consist of a small lot of land and a dwelling, with a shop in the rear. The defendant’s pi-emises consist of a lot of land with a store building thereon. Both front upon Main street. The plaintiff’s land extends sixteen feet eastei’ly of his dwelling, and the defendant’s west line is the easterly line of the plaintiff’s land. The defendant claims a right of way over all the plaintiff’s land east of his dwelling, sixteen feet in width, to the rear of plaintiff’s lot: The controversy in this suit is as to such claimed right of way for the purpose of going to and from the west side and rear part of the defendant’s store building. March 25, 1848, and prior thereto the plaintiff’s premises and the defendant’s, and the lot adjoining and easterly of the defendant’s, known as the Barrett Lot, were owned as one entire piece of property by Daniel A. Heald. March 25, said Heald conveyed the plaintiff’s premises to one Horace II. Adams, in which deed they are described as follows : “.Being the Bo.ynton shop so called and bounded west by the Spear lot, north by the highway leading from Jacob Patrick’s blacksmith shop to Reuben Washburn’s office, east sixteen feet — 349 — from the northeast corner of the house standing on said premises by the store lot known as the Haven and Fletcher store in a line pároli el with the first mentioned west line, to land of Benjamin Pottengill, and south by land of said Pettingill, and is the same premises deeded to me by John R. and Louisa H. Smith and Richard F. Fletcher. Said sixteen feet of said house to be kept open as far back as the south end of the house.” ' The plaintiff acquired title by deed dated May 26, 1856, and has since been the owner thereof. April 1,1848, Heald conveyed the defendant’s premises,including the Barrett Lot, to Mason & Whitcomb. In which deed the premises are described as follows : “ Bounded west by the Boynton shop lot, so called, by a line sixteen feet east of the northeast corner of the house standing on said Boynton shop lot and running southerly in a line parallel with the west line of said Boynton shop lot to land of Benjamin Pettengill, south by land of said Pettengilll, east by the street leading on to South Iiill (now called Depot street,) and north by the street leading from Jacob Patrick's blacksmith shop to R. Washburn’s office, and contains about one-fourth of an acre of land, be the same more or less.” By subsequent deed the defendant’s premises, including the Barrett lot, were conveyed until May 11, 1868, when the defendant acquired title to the same. From this statement it appears that the southern or rear boundary of the plaintiff’s and defendant’s premises is a continuation of the same straight line. The defendant claimed on the trial below, the right of way in question ; first, under the deeds from Ileald to Adams and to Mason & Whitcomb, and subsequent conveyances; second, by an adverse use of such way for the required period to gain a prescriptive right. The County Court decided adversely to both claims and directed a verdict for the plaintiff. To the rulings of the court the defendant excepted. Upon the defendant’s first claim he offered evidence tending to show that prior to Heald’s obtaining title to the premises of both parties in 1848, said sixteen feet had for more than twenty years been used by the then owners of the defendant’s premises — 350 — to go to and from the back part of this lot on which a store stood, and this was offered, as tending to show the construction that should be given to the deed from Heald to Adams, and what the parties intended. The court excluded such evidence, to which the defendant excepted. For like purpose the defendant offered to show by duly certified copies of deeds of said premises, given prior to the time Iieald acquired title to both premises, that, at the time Heald acquired title, the east line of plaintiff’s premises was only eight feet east of the dwelling house of the plaintiff then standing thereon. The court also refused to receive this evidence to which the defendant excepted. I. Taking up these questions in the order stated, we think it is plain that the clause in the deed of Heald to Adams, viz.: “ Said sixteen feet (east) of said house to be kept open as far back as the south end of said house,” was not a reservation of a right of way. The provision or restriction is in derogation of the grant, and is not entitled to a liberal construction in favor of the grantor. The clause does not import any idea of a reserved right of way, independent of extrinsic considerations. It is a restriction of negative character applicable to other matters, such as obstructing light and air or the view. Wash. Ease. 14; 2 Wash. R. P. 26. The language of a reservation must be as explicit as that of a grant. This construction is made certain by reference to the circumstances. The defendant does not limit his claim to a right of way over the plaintiff’s land to the south end of the plaintiff’s house, but claims it through to the end of the lot, and for the convenience of the rear end of the buildings which extend nearly to the rear of his lot. The south end of the house referred to was only about half way from front to rear of the lot. The space was but sixteen feet wide and a portion of that was taken up by an outside stairway to the second story of the plaintiff’s house. It did not'reach to the rear of the buildings on the adjoining premises of Heald now owned by the defendant; therefore the space afforded no convenience, as a'way,’to Healdi — 351 — Neither was it a necessity to him, because he liad access to the rear from another street, liis building standing as it did on a corner, and he also had ample room for a drive-way from Main street, in front, between the east line of the premises conveyed and the building on his adjoining corner lot on the east, the space being aboni eighteen feet wide. We think the testimony offered was properly excluded. When the property became united in Heald, the right of way, if any existed, was extinguished by unity of ownership and possession. The servitude, if any, was merged. Wash. Ease. 639; 3 Kent Com. 423; Plimpton v. Converse, 42 Vt. 712. Moreover there was no such ambiguity in said restrictive clause as to warrant the introduction of the evidence offered for the purpose offered. If there is any doubt as to what the restriction applied, we have none that it should not be construed as an affirmative reservation of a right of way. The parties to the deed made it definite to that extent by the language used. It is true the evidence offered was documentary, but it was extrinsic. The documents were not contemporaneous or between the parties to the deed in question. To have admitted them would have violated the principle, if not the letter, of the rule that excludes parol evidence to vary a written instrument. As Heald reserved no right of way when he conveyed to Adams, he had none to convey when, six days afterwards, he made the conveyance of the corner premises to Mason and Whit-comb, and in that deed he did not purport to convey any right of way. No mention of it was made, but he described the western boundary, as the oast line of the now plaintiff’s premises. As Heald had no right of way to convoy when he made the deed to Mason and Whitcomb, it is unimportant in this case to consider whether his deed to them would not have carried a right of way by implication as an appurtenant of the premises conveyed, provided he had had one to convey, II. Hid the defendant’s evidence tend to show that he and his grantors had acquired a right of way by prescription ? The plaintiff showed record title in himself. The burden was — 352 — oix the defendant to overcome this title. The exceptions state that the defendant’s evidence tended to show that his grantors from 1848 to 1868, when the defendant came in, were accustomed to use the way in question from front to rear of his premises, in an open and notorious manner. If the statement in the exceptions stopped there, we think the evidence would have been sufficient to entitle the defendant to go to the jury on this question, without showing that such uses of the way expressly declared that they used it under a claim of right. The use of an easement may be of such character as to create the presumption and warrant the conclusion that it was being used under a claim of right. A declaration of claim is legal evidence of the fact of claim ; but here as elsewhere acts often speak louder than words. Arbuckle v. Ward, 29 Vt. 43; Dodge v. Stacey, 39 Vt. 558. The enjoyment or use must be under a claim of right; and the question here is simply whether the evidence tended to show the claim. We think it did. Godd. Ease. pp. 134, 316. But the exceptions go further and state exactly what the claim was in connection with the use, from October, 1859, to the fall of 1866. During this time one Stimson occupied the defendant’s premises, and owned them all this time except the last year ; and he testified that he used this way as he had occasion and the court put it upon him by a ruling upon a question asked, to state whether he made any claim in any way; whether he stated it to the other party or not. The witness replied, “ I never claimed that I had any.” We think that in view of all that took place between court and counsel, as shown by the stenographer’s minutes, when this reply was made, and in the light of all his testimony, he meant to be understood that he never entertained any claim of right to use the way, and never used it with the intent of claim. As a claim of right is an essential link in the chain that upholds a prescriptive right, if that is wanting the other links all go for nothing. The exceptions also show that the testimony of Stimson was in no respect contradicted or varied. — 353 — His testimony, unattacked, negatived adverse use daring his ownership; and it is not claimed that there was fifteen years continuous use, of such character as to gain a prescriptive right, after his ownership. ■ The defendant having failed to show title by deed or that he had acquired a prescriptive right, it became the duty of' the County Court to direct a verdict. Under the view taken it is not necessary to pass upon the other rulings to which exception was taken. Judgment affirmed.