Pentland v. Keep

Lyon, J. Ye have no question in this case o£ a way of necessity, as in Dillman v. Hoffman, 38 Wis., 559; for the store of the plaintiff fronts npon a public street, and access to it is not dependent npon a way across the defendant’s lot. Hence, if the plaintiff has a right of way to his store over the lot of the defendant, such right must rest in express grant or in prescription. 1. Has he such right by virtue of a valid, effectual grant? It may he assumed for the purposes of the case, that if there was then a right of way across store-lot Ho. 3, appurtenant to lot Ho. 2, the conveyance of the latter lot in 1855 by Manchester to Foss (to whose rights the plaintiff has succeeded) carried with it such right of way, although the same was not expressly granted in that conveyance. This is assumed, not decided. The conveyance of store-lot No. 2 by Wadsworth to Manchester in 1845 contains an express grant, in form, of such right of way. But such grant is not operative against the defendant unless Hanchett, to whom Wadsworth conveyed lot Ho. 3, and to whose rights the defendant has succeeded, had actual or constructive notice thereof, or unless there is a corresponding reservation of a right of way to lot Ho. 2 over lot 3 in such conveyance to Hanchett. The deeds from Wadsworth to Manchester and Hanchett, respectively, were executed on the same day — December 13, 1845, and both were recorded December 29th in the same year. When they were executed, there was no such use of the lanes as would charge a purchaser of one of the lots with notice of the existence of an easement therein. There is no evidence tending to show that Hanchett had actual notice that a right of way had been or was about to be granted to Manchester across lot Ho. 3. We conclude, therefore, that Hanchett had [500] no notice either actual or constructive that Wadsworth had granted a right of way across lot No. 3. This brings us to the question, Did the reservation in Uan-chett’s deed of a right of way across lot No. 3 enure to the benefit of Manchester or of the owner or owners of lot No. 2? We are unable to see how it could so operate. It is a reservation in general terms of a right of way conveyed to Reynolds in a deed executed to him on the same day by Wads-worth. It does not specify the land or lot so conveyed to Reynolds; neither does the plat to which reference is made. Reynolds’ name does not appear upon the plat, and there is nothing on the face of the plat or in the deed to Iianchett to show that the reservation was for the benefit of Manchester, or that the right of way reserved was a right appurtenant to lot No. 2. But it is said that the evidence shows that the name of Reynolds was inserted in the reservation in Hanchett’s deed by mistake instead of the name of Manchester. We havé no reason to doubt that such is the fact. Reynolds was engaged in business with Manchester, and acted as his agent in purchasing for him lot 2 of Wadsworth. The mistake is thus readily accounted for. But it does not follow that the mistake can now be rectified, or that the rights of Iianchett or his grantees can be affected by it. liad Wadsworth .commenced an action against Iianchett, while the latter was still the owner of lot No. 3, to reform the conveyance by inserting therein a reservation of a right of way in favor of Manchester instead of Reynolds, it would have been incumbent upon Wadsworth to prove in the first instance that Iianchett knew that a reservation in favor of Manchester was intended in the original deed. Failing to make this proof, he would inevitably have failed to obtain the relief sought. Had Manchester attempted by legal proceedings to enforce the right of way granted to him by Wadsworth over Iian-chett’s lot, it would have been essential to his case to show [501] that Hanchett had notice of such grant when he took a conveyance of the lot from Wadsworth. It does not appear that either Wadsworth or Manchester could have made the required proof; for, as already observed, the evidence in the present case fails to show that Hanchett is chargeable with notice of the grant to Manchester, and it also fails to show that Han-chett knew that the reservation in his deed was intended to he in favor of Manchester instead of Reynolds. It must be held, therefore, that Hanchett and his grantees took the title in fee to lot No. 3, subject only to the right of way specified in Wadsworth’s conveyance to Hanchett; and inasmuch as no right of way in favor of Manchester, or appurtenant to lot No. 2, is specified therein, it follows that the grant of a right of way to Manchester over lot No. 3 was inoperative as against Hanchett, and is inoperative as against the defendant, who succeeds to the rights of Hanchett. 2./Has the plaintiff a right of way by prescription over the defendant’s lot? The learned circuit judge found as facts in the case, that the lanes in question were used as ways by the owners and occupants of the four stores and others, uninterruptedly from 1845 until the trial of the action; but that such use was permissive only, and without any claim of legal right thereto by any person enjoying such use. If the latter finding is supported by the evidence, there is no valid prescription; for, to establish a right to an easement by prescription, it must be shown not only that it has been enjoyed unterruptedly the requisite length of time, but that the user was adverse, and not merely permissive. Rooker v. Perkins, 14 Wis., 79; Haag v. Delorme, 30 id., 591, and cases cited. It is earnestly argued, however, by the learned counsel for the plaintiff, that the evidence abundantly proves that the user in this case was advei’se; but we find it unnecessary to review the finding of the judge in this particular, because we are satisfied that, on another ground, it was correctly held [502] tliat the plaintiff failed to establish a right of way across defendant’s lot by prescription or user. Washburn, in his treatise on the law of real property (vol. 2, p. 48; 2d ed., p. 328), speaking of easements acquired by user, says: “ Another circumstance essential to acquiring an easement in land is, that the land, during the time of the easement being acquired, should be in the possession and occupation of some one as the owner of the inheritance, who is not under disability to resist the use, and who may be presumed to have made a grant of such easement from his having been at the time of capacity to make it. * * * Thus, if, while the use of that which is claimed as an easement is being had, the land in which it is claimed is in possession of a tenant, it would not give such right of easement against a reversioner.” And again, in his treatise on the law of easements and servi-tudes, the same learned author says: “ In addition to what has already been said, it may be stated, with few if any qualifications, that neither a remainderman nor a reversioner1 can be affected by any use or enjoyment of an easement in or over the servient estate, by way of thereby creating a prescriptive right in respect to the same, while his land is in the possession and occupation of a tenant for life or years.” The doctrine of the text is fully sustained by the cases there cited. Two cases have been cited on behalf of the plaintiff in opposition to this doctrine. These are Gross v. Lewis, 2 B. & 0., 686, and Mebane v. Patrick, 1 Jones (N. C.), 23. In the first case, a user of an easement for many years before the tenancy of the servient estate commenced, was proved. It was a case of ancient lights. Abbott, O. J., said: “ Blit upon this evidence it must be taken that they were ancient lights, existing before Mrs. P’s tenancy coimneneed.” That is, the right to the easement was established by user before the serv-ient estate was occupied by a tenant. In the Worth. Carolina case it was held, apparently without argument or citation of authority, that the user upon which [503] the claim of a right of way by prescription was founded, was sufficient to establish the prescription, although when it commenced the servient estate was in the possession of a tenant. This seems to have been assumed rather than determined. The real point decided was, that when an adverse user sufficient to found a prescription had once commenced to run against the owner of the servient estate, not under disability, the fact that such owner was under a disability (in that case he became insane) would not stop the running of the prescription. These cases do not shake the doctrine laid down by Wash-burn, as applied to a case where the owner of the servient estate is under disability during the whole time of the user. The judge found that store-lot No. 3, ever since "Wads-worth conveyed it to Haneliett in 1845, has always been occupied by tenants of the respective owners, and not by the owners in person. The correctness of this finding does not seem to be questioned. The user of the right of way over the lot was not an injury to the reversion for which Haneliett or any of his grantees could have maintained an action. Neither could he or they have gone upon the lot and closed up the way without infringing the rights of the tenant in possession. Hence they were always under disability, always powerless to resist the use of the lot for the purposes of a way to lot No. 2. Such being the case, the rule above stated applies, and the user, although for thirty years, will not support the claim of an easement by prescription. The foregoing views are decisive of the case, and we are relieved from the duty of determining other questions presented by the record and which have been ably argued by the respective counsel. By the Court. — The judgment of the circuit court is affirmed.