Shevchuk v. Kotchik

HARRIS, J. 1. The printed abstract, filed by the defendants, contains a transcript of an affidavit made by the attorney for the defendants. This affidavit recites, among other things, that the judgment “given by the court” was based upon the pleadings and “the stipulation that Kiril Barmatow was the owner of the property, now belonging to plaintiffs on August 14th, 1914, * * and that plaintiffs were now the owners of said premises.” In other words, the defendants themselves say that the trial judge based his ruling, not upon the pleadings alone, but upon the pleadings and a stipulation that the plaintiffs own lot 2; and therefore, we must assume, regardless of any allegations or denials in either of the pleadings, that the plaintiffs became the owners of lot 2 subsequent to the execution of the. writing given by Kiril Barmatow to the defendants. [185] 2. It is not necessary to decide whether the defendants acquired a mere license, or a permanent easement, from Kiril Barmatow; nor, if it be assumed that the defendants acquired an easement, need we attempt to ascertain whether the easement was appurtenant or in gross. For the purposes of this discussion, we may assume that, as between Kiril Barmatow and the defendants, the former granted to the latter an irrevocable right to connect with and maintain the connection with the sewer on lot 2. ’ The plaintiffs, who were subsequent purchasers of lot 2, would not be bound by the assumed easement in the absence of actual or constructive notice of its existence. It makes no difference whether “we say that the writing signed by Kiril Barmatow of itself created an easement, or whether we hold that it granted a mere license which, by reason of work done and expenditures made by the defendants, was converted into an irrevocable right or easement, for in either event it must be held that the defendants cannot prevail, even though it be assumed that the affirmative matter in the answer is true. The writing signed by Kiril Barmatow was not executed with all the formalities of a deed, and for that reason it was not entitled to be recorded; nor is it claimed that the writing was recorded. If the plaintiffs purchased with notice of an easement, then, of course, they took the land burdened with that easement; but if the plaintiffs purchased without notice, they did not take the land burdened with the easement: 19 C. J. 939, 940. The defendants concede that the plaintiffs as subsequent purchasers are the owners of the legal title to lot 2, and yet the defendants are attempting to fasten and attach to the land an easement or a right or an equity without [186] averring that the plaintiffs purchased with notice 'of the easement or right or equity. In the absence of notice to the plaintiffs, the easement or right or equity terminated contemporaneously with the purchase. This is not a suit in equity in which a bona fide purchase without notice is interposed as a defense. Whether or not the defendants have a present right depends upon whether or not the plaintiffs purchased with notice. The defendants have no right if there was no notice to the plaintiffs. The answer admits the maintenance of the sewer connection, but it fails to show that the connection is rightfully maintained. The answer admits the doing of an act which the defendants have no right to do, unless they show that the plaintiffs purchased with notice; and, not having alleged notice on the part of the plaintiffs, the defendants are found relying upon an answer which alleges a wrongful act: Advance Thresher Co. v. Esteb, 41 Or. 469, 477 (69 Pac. 447); 39 Cyc. 1778, 1783, and cases in note 3, including Peterson v. McCauley (Tex. Civ. App.), 25 S. W. 826. 3. In the complaint Nazar Shevchuk and Millie Shevchuk are named as plaintiffs. In the body of the complaint reference is sometimes made to “plaintiff” and sometimes to “plaintiffs”; and the judgment speaks of “the plaintiff.” The briefs make no reference to these discrepancies, and we assume that these differences may be ascribed to mere clerical errors. The judgment appealed from is affirmed. Affirmed. Rehearing Denied. Bean, Benson and Burnett, JJ., concur.