Fendall v. Miller

BEAN, J. 1. The rights of a person owning an easement in the land of another are measured and described by the purpose and character of that easement; and so far as is consistent therewith, the right to use the land remains in the owner of the fee: 9 R. C. L., p. 784, § 42. 2-4. The extent of an easement is to be determined by a true construction of the grant or reservation by which it is created, aided by any concomitant circumstances which have a legitimate tendency to show the intention of the parties. If the grant is specific in its terms, it is decisive of the limits of the easement. On the other hand, where the easement is not specifically defined, the rule is that it need be only such as is reasonably necessary and convenient for the purpose for which it was created. The servient estate will not be burdened to a greater extent than was contemplated or intended at the time of the creation of the easement: 9 R. C. L. 785, § 43; 19 C. J., p. 967, § 202; Winslow v. Vallejo, 148 Cal. — 616 — 723 (84 Pac. 191, 113 Am. St. Rep. 349, 7 Ann. Cas. 851, 5 L. R. A. (N. S.) 851); Lidgerding v. Zignego, 77 Minn. 421 (80 N. W. 360, 77 Am. St. Rep. 677); Smith v. Furbish, 68 N. H. 123 (44 Atl. 396, 47 L. R. A. 226); notes, 101 Am. St. Rep. 902; 20 L. R. A. 635. 5. It is stated in 9 R. C. L., page 800, section 56, that: “The grant of a way without reservation of the right to maintain gates does not necessarily preclude the owner of the land from doing so, and unless it is expressly stipulated that the way shall be an open one, or it appears from the terms of the grant or the circumstances that such was the intention, the owner of the servient estate may erect gates across the way, if they are constructed so as not unreasonably to interfere with the right of passage.” See note to Luster v. Garner, 48 L. R. A. (N. S.) 90. The question whether the grantee of a right of way is entitled to a way unobstructed by gates depends upon the terms of the grant, its purposes, nature, and situation of the property and the manner in which the way has been used and occupied: 19 C. J., p. 986, § 240. 6. The owner of the servient estate, while he may use his property in any manner consistent with the existence of the easement, has no right to make any alterations in his property by which the enjoyment of the easement will be materially interfered with: 19 C. J., p. 983, § 234. 7. With this brief reference to the law we come to the delicate problem of construing the grant of the easement in question. The decisions upon the question of burdening an easement with gates are as various as the kinds of easements are numerous. When there is no ambiguity the words used in the — 617 — grant of an easement should receive their plain ordinary meaning, unless it appears by the context that they were used in a different sense, or else when applied to the subject matter they have a technical meaning: Flaherty v. Fleming, 58 W. Va. 669 (52 S. E. 857, 3 L. R. A. (N. S.) 461, 463); Patton v. W. Carolina Co., 101 N. C. 408 (8 S. E. 140); Garland v. Furber, 47 N. H. 301. 8,9. It is a well-settled rule of law that, where there is an exception or reservation of one thing, it will be presumed that no other exceptions or reservations are intended than those expressed. Every word or clause in a written instrument is to be given its full effect if possible to do so: Town of Gold Bar v. Gold Bar Lbr. Co., 109 Wash. 391 (186 Pac. 896). 10. It may be assumed that, if the conveyance of the easement in question was “of a gateway now owned by us” or a private way, that the owner of the servient estate, Richard Fendall, would have the right to construct gates in addition to those existing at the time of the grant. We have, however, other words to construe. The gateway is “to be used as a road of public easement.” As noted, the conveyance of the easement was executed on September 18, 1906. At that time and for a long time prior thereto the act of 1903, Section 4610, Or. L., which was a reenactment of the substance of the Law of 1876, p. 251, was on our statute books. Various amendments to the original act have been made from time to time. These are not necessary to be considered. The statute provides that when a farm or residence of a person is not reached conveniently by any public road, by compliance with the statute, there may be laid out and opened “either a suitable public road not exceeding sixty (60) feet wide, or a gateway not less than ten — 618 — (10) nor more than thirty (30) feet wide, or both, as may be found best by said road viewers.” Before 1903, the statute provided for the location of a “county road thirty feet in width or a gateway not less than ten nor more than thirty feet in width from the residence of such person to some other public road. * * ” The title of the act of 1903 referred to such highway as “roads of public easement.” In Bellinger & Cotton’s Code, which was in use at the time of the grant, in a note to Section 4966, we find that— “The general law in regard to laying out public highways does not apply to the law of which this is a part, to roads of public easement * * ”—citing Towns v. Klamath Co., 33 Or. 225 (53 Pac. 604); Sullivan v. Kline, 33 Or. 260 (54 Pac. 154); Fanning v. Gilliand, 37 Or. 369 (61 Pac. 636, 62 Pac. 209, 82 Am. St. Rep. 758). Tn each of the three cases just cited the road is referred to as a “road of public easement.” In Towns v. Klamath Co., 33 Or. 225 (53 Pac. 604), speaking of the kind of road, it is declared to be an “open public way.” In Anderson v. Smith-Powers Logging Co., 71 Or. 276, at page 297 (139 Pac. 736, L. R. A. 1916B, 1089), “road of public easement” is referred to. The constitutionality of the act had been questioned. It is believed that the conveyance in question was executed with a view to the statute referred to. It seems the defendants, desiring not to be required to file a petition and pay the damages which might be assessed for the laying out and opening a county road, or road of public easement, obtained from the plaintiff’s grantor a conveyance of an easement, which they evidently expected would answer the same — 619 — purpose or a gateway to be used for the same purpose. It was termed a “gateway” for the reason there were two gates originally constructed at the termini thereof. The words “to be used as a road of public easement” indicate that it was to be a public thoroughfare. In other words, the easement in question partakes of the nature of both of the kinds of highway provided for by the statute. If the highway between the two gates then existing is termed a “county road,” or “road of public easement,” according to the statutes of 1903 and 1876, or a “public road” as designated by Section 4610, Or. L., it would be incompatible with the grant to burden such road with four gates. The words contained in the description of the easement “to be used as a road of public easement” qualify the meaning of the term “gateway” and demonstrate the exact nature of the easement which the defendant purchased. It is only where there is an uncertainty or ambiguity that the court will go outside of the deed to inquire into the nature of the easement: 13 Cyc. 610; Dickinson v. Whiting, 141 Mass. 414 (6 N. E. 92); Dean v. Erskine, 18 N. H. 81; Reed v. Locks & Canals, 49 U. S. (8 How.) 274 (12 L. Ed. 1077, see, also, Rose’s U. S. Notes); Snow v. Orleans, 126 Mass. 453, 456. 11. Where there is a conveyance of a tract of land and there is no means of access thereto or egress therefrom except over the remaining land of the grantor, a way of necessity over such land is granted by implication of law, and the grantor cannot by subsequent conveyance deprive the grantee of a way. Such right is vested in the grantee as an appurtenance to the estate granted: 19 C. J. 923, 924; Brown v. Kemp, 46 Or. 517 (81 Pac. 236). — 620 — The defendants were not satisfied with the character of the right of way which they had by virtue of law. They were desirous of obtaining a right of way over the property of P. R. Fendall which would guarantee to them more rights than they had before their purchase. They evidently wanted an open public right of way, subject only to the two gates which were upon the right of way on the date of the conveyance. They paid a valuable consideration for the easement purchased, and to encumber the same with numerous gates would be in direct conflict with the deed of conveyance. “A road of public easement” means a road which not only the defendants have a right to use but also the public in general: 19 C. J. 983, 987, and notes; De Vore v. Ellis, 62 Iowa, 505 (17 N. W. 740); Welch v. Wilcox, 101 Mass. 162 (100 Am. Dec. 113); Goodale v. Goodale, 107 Me. 301 (78 Atl. 567); Ledford v. Cummins, 20 Ky. Law Rep. 393. The term “gateway,” if it had been used alone in the deed, would mean a road or passageway upon which gates are ordinarily placed. The Fendalls, as grantors in the deed of easement in question, defined the nature of the particular gateway to be of such a character and nature that it was to be used as a road of public easement. The grantor was very careful in describing just what he sold. To protect himself he made a certain reservation in the deed. He and his successors in title are now precluded from saying that he reserved other things not expressly reserved in the deed. In the instant case there are now four gates upon the right of way, which is about three fourths of a mile in length, the plaintiff having placed the fourth gate thereon. Such act upon plain — 621 — tiff’s part is an unreasonable interference with the right of way of defendants. It follows that the decree of the lower court should be reversed and one entered in accordance with the prayer of defendants’ answer. It is so ordered. Reversed. Decree Entered. Burnett, C. J., took no part in the consideration of this case.