Luttropp v. Kilborn

Crownhart, J. We have examined the evidence in this case, and conclude that the findings of fact of the trial court are fairly sustained. It is a general rule of law that a reservation or grant of right of way by a grantor who owns adjoining lands to which the right of way is beneficial is held to be appurtenant to such premises. Barkhausen v. C., M. & St. P. R. Co. 142 Wis. 292, 124 N. W. 649, 125 N. W. 680. In that case the court adopted the rule in the following language: “When it appears by the true construction of the terms of a grant that it was the well-understood purpose of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, no matter in what form such purpose may be expressed, whether it be in the form of a condition, or covenant, or reservation, or exception, such right, if not against public policy, will be held to be appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burthen thus created and imposed will pass with the lands to all subsequent grantees.” In the instant case it may be fairly said, as' the trial court found, that the right of way granted was appurtenant to the other lands of the grantors of the original conveyance of 1887. All subsequent conveyances recognized such right of way by appropriate grant or reservation, and the right of way was continuously used thereafter. The plaintiffs secured title to their lot in 1919, and such right of way was [222] 'then in general use by the public as well as by the immediate predecessor in title of the respondents herein. An 'easement of a way over the land of another, which terminates on the lands of the owners of the easement, is appurtenant to the lands of such owners. Spensley v. Valentine, 34 Wis. 154. Courts are inclined against forfeiture of an easement unless such intent plainly appears. The intention of the parties to a deed containing a grant or reservation of an easement, if in doubt from the -language of the deed, may be shown by surrounding circumstances. Jones v. Hoffman, 149 Wis. 30, 134 N. W. 1046. The circumstance of grantors’ other property and the use of the right of way in connection therewith over a long term of years is very significant. The words of the grant — “A right of way or passage for persons and teams in common with grantors”— are reasonably susceptible of the construction given them by the trial court. The way in question was serviceable to grantors for use in connection with other property, which they retained, and was so used continuously up to the commencement of this suit, except for an encroachment thereon by the owners of the lot lying north and adjoining plaintiffs’ lot. This encroachment was a building covering part of such right of way on the westerly side. Traffic on the right of way turned slightly to the east thereafter and continued as before. This encroachment appears to have been by general consent, as was the change in the course of travel. It is urged by appellants that this consent worked an abandonment of the easement. So- long as the encroachment did not in fact cause an abandonment of the use of the right of way over plaintiffs’ premises, but such use continued as before, we cannot hold as a matter of law that the easement was abandoned. On the contrary, the easement on plaintiffs’ premises continued undisturbed and the way was only slightly modified elsewhere. This would not constitute abandonment. ■ This [223] is a case in equity, and plaintiffs have no equitable consideration to claim such abandonment. Appellants further contend that in the original grant there are no words of inheritance. No words of inheritance are necessary to create a fee. Secs. 2206, 2270, Stats. Complaint is made that the court did not grant relief for that portion of the premises not controverted. This was not called to the attention of the trial court and not specifically prayed for in the complaint. Under the circumstances it will not be considered here. We have not overlooked other objections to the judgment raised by appellants, but they are deemed sufficiently disposed of by the foregoing opinion. By the Court. — The judgment of the circuit court is affirmed.