Stenz v. Mahoney

©ARDebw, J. Under no possible theory of the case are we able to see how plaintiffs are entitled to an easement in a stairway three feet wide entirely on defendant’s land. It must be assumed that the Murrays knew of the relative situation of the buildings at the time of their deed to plaintiffs. Such deed, after describing the tract conveyed, says, “together with the use of a stairway as the same is now constructed and used, and on and adjoining said property on the east side thereof, and to have free access and use of said stairway so long as the same shall there remain,” etc. Then follows an attempt to provide for a permanent easement for a stairway to be used [120] in common, three feet wide; one half to be on plaintiffs’ land, and the other on the premises now owned by the defendant. By using the word “east” instead of “west”’ in describing its location, the deed carried the easement away from the plaintiffs’ land. It seems perfectly evident that the parties did not intend a perpetual easement to be created as to the stairway in use at the time the deed was made. The deed speaks of such stairway as being “on and adjoining” the property conveyed, and grants the use thereof so long “as the same shall there remain.” So long as it remained as it then existed, it was to be used in common. There was no restriction as to either party’s changing the conditions. There was no attempt made to create an easement to be entirely upon the property to the east. On the contrary, the intention plainly manifest is that the perpetual easement should rest equally on each tract, and apt words were used to indicate that intention, except for the mistake mentioned. The defendant admitted that to have been the purpose in the deed when she offered to permit her premises to be used for a stairway in connection with an equal strip of plaintiffs’ land. The plaintiffs seem not to have been satisfied with this offer. They compelled defendant to remove her building and stairway as it existed when the deed was made, entirely upon her own land, and then blocked the one and one-half feet on the east side of their building, intended for the common stairway, by moving their building to the east line of their lot. They now insist upon a right to use the stairway entirely upon defendant’s premises. We do not think this claim is sustainable under the deed mentioned. “Every privilege which one man claims in derogation of the fights of another is viewed with jealousy by the law, and it will require it to be confined to the prescribed limits and specified object of the grant.” Taylor v. Hampton, 4 McCord, 96. [121] Bights of the sort claimed by plaintiffs are servitudes, and may he extinguished by act of God, operation of law, or by the act of the party. A servitude may be extinguished by renunciation of the party entitled to it, either express or implied. When the act which prevents the servitude is by the party to whom the servitude is due, it is wholly extinguished. Any act wholly incompatible with the nature and exercise of the servitude is sufficient to extinguish it. These principles are laid down and elaborated in the case cited, and have been recognized and enforced in this state. Dillman v. Hoffman, 38 Wis. 559. See Duncan v. Rodecker, 90 Wis. 1, 62 N. W. 533; Corning v. Gould, 16 Wend. 531. They have direct .application to this case. When plaintiffs required defendant to change the condition existing at the time the deed was made, there was an implied renunciation of the easement as it then existed. When they moved their building onto the ■strip reserved for the common stairway, such conduct was incompatible with the easement attempted to he created by the deed. The original easement was one to be used in common so long as existing conditions continued. When they were ■changed, the intent was perfectly evident that each tract should hear a part of the common burden. Plaintiffs, by an adverse permanent obstruction of the common easement, left it within the power of the defendant to elect to declare the easement extinguished. Whether that has been done in this ease, we need not stop to inquire. It is sufficient for the purposes of this appeal to say that plaintiffs’ conduct has extinguished the temporary easement as created by the first clause in the deed, and that they cannot now claim to use defendant’s stairway, located entirely upon her own land. By the Court. — The order appealed from is reversed, and the cause is remanded with directions to enter an order ■denying the temporary injunction prayed for, and for further proceedings according to law.