Brossart v. Corlett

Wright, J. 1. basement:: extent of: construction, This case was decided right. The rule, we grant, is that an easement appurtenant to an estate is so to every part thereof, whatever the subdi- , , *1 r . „ vision at the time or subsequently. Jout it is just as true that the servient estate is not to be burdened to a greater extent than was contemplated at the time of the creation of the easement. Construing these title papers in the light of the surrounding circumstances, remembering that a subsequent sale of a part of the dominant estate shall not, and cannot, operate to extend the original right, nor to increase the burden upon the servient estate, and looking at the very language of the reservation, we have no difficulty in settling the rights of these parties. If we add to these considerations, their acts extending from eight to seventeen years (this action was not commenced until in 1869), the correctness of the judgment below is greatly strengthened. g __ ri„M of way' Plaintiff took title with the knowledge of defendant’s rights, or the rights of Yan Fleet, under whom he holds. By his deed he is permitted to make use of the right of way as reserved and described in the conveyance from Lyon to Yan Fleet. It is true that it speaks of a right of way to the east end of said lot (the lot conveyed to plaintiff), but as against defendant this is of no avail, unless the right reserved by Lyon extended so far. And any argument drawn from the claimed contemporaneous construction given by Lyon to his grant, and the extension of his reservation, by the language used in his deed to plaintiff, cannot avail against defendant or his grantors, for he was not a party to such deed. He holds adverse to and not under that conveyance. Not only so, but by his act and language he has always denied this construction. Now we must remember that when Lyon sold to Yan Fleet he owned all of the ground (84 feet) along the west boundary of the tract conveyed, [298] extending to Clinton street in front. He thus had reserved, and as his own, a tract of 96 feet by 84, excepting the piece 23 feet 4 inches by 17 feet 3 inches in the N. W. corner, at that time held by plaintiff. He was about selling a parcel in the rear of this, which in the hands of another, without reservation, might be so occupied as to completely cut him off from any approach to that which he still held, from the rear or from Washington street. To prevent this was his object, and this is what the parties contemplated. The premises' to be reached were on lots 5 and 6. Not all of these lots, nor all of either. He owned parts of, but not equally in, each. Now he says: “I reserve aright of wa¶ to and fro through said premises (the servient estate) for wagons and foot passengers from Washington street to the eastern boundary of my premises.” Not to and along, but to my premises. When, by going through said servient estate, the eastern boxmdary of the dominant estate was reached, the language, the meaning, the object of the parties was met and accomplished. More than this could not be claimed. If more was intended, it could have been made clear by the words “ and along,” in addition to those employed. The omission is most significant; for, if the way was to extend along defendant’s whole western boundary, it is most singular that these words, so apt to express the intent, were not inserted. The language used is clear enough; that omitted makes it even more so.' But, if indefinite — -that is, if the reservation was ambiguous — it would be located so as to impose as little burden upon the servient estate as consistent with a fair use of the way (with possibly the right to locate it, in the first instance at least, in the servient owner), and this again would sustain defendant’s claim. As already intimated, the argument that the language of plaintiff’s deed from Byon (“the right of way to the [299] east end of said lot ”) is without meaning, unless his con-. struction is correct, is of no force, because defendant is no party to it and does not claim under it. But why is it not of use to him even though not extended as he now claims ? The right reserved in the Yan Fleet deed was to Lyon, his heirs and assigns, not to all persons. Plaintiff may have regarded the assignment or transfer of the right to him (locating the way as defendant does) as of vital importance, relying upon a right of way from necessity, from subsequent negotiation, if not from his deed, over and along Lyon’s land. But, however this may be, the right conferred is limited, and is referred specifically to, and dependent upon that reserved in the deed, under which defendant claims and upon which lie relies. And this, as ive have seen, extends to Lyon’s east boundary, and not to the east end of plaintiff’s lot. Affirmed.