Duvall v. Ridout

Urner, J., delivered the opinion of the Court. By the decree from which this appeal is taken the appellant was perpetually enjoined from using’ a certain roadway extending from his farm through the adjoining property of the appellee to the public highway. It is alleged in the bill of complaint and shown by the proof that the contiguous lands of the parties to the suit formerly composed a single farm of about one hundred and twenty-seven acres under the ownership of the appellee and his brother as tenants in common. On December 28th, 1909, they conveyed to the appellant eighty-one acres of the land including the portion on which the farm buildings are located.

The appellee has since become the owner of the entire title to the remaining forty-six acres by grant from his co-tenant. At the time of the appellant’s purchase there was a well-defined but unimproved driveway leading to the public road; from the dwelling and barn on the premises conveyed, over the land reserved by the grantors. This had been used as the customary way of travel to and from the farm buildings for many years. It was not, however, the only available outlet, as the land sold to the appellant bordered on a public thoroughfare and contained within its own area a road leading from the buildings to the highway.

The last mentioned private way, by reason of its grade and location, was much less serviceable and convenient than the one extending through the property retained by the appellee and his co-owner. The deed to the appellant conveyed to him the eighty-one acres mentioned, together with “all and every the rights, ¹⁹⁵ alloys, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining.” It is the appellant’s theory that under this clause of the grant iie acquired an easement in the roadway over the land reserved. For several years after his purchase of the part of the farm described in his deed he used the way through the remaining portion without objection. But it appears from, the evidence that in October, 1913, the appellee erected wire fencing across the roadway, and the appellant having removed it under a claim of right to the continued and permanent use of the way as appurtenant to his property, the present litigation has resulted.

In the ease of Oliver v. Hook, 47 Md. 301 , where the question we have now to decide was considered upon facts analogous to those shown by the record before us, it was,contended that inasmuch as the way in controversy was existing and apparent at the time of the execution of the deed under which (he right to its use was claimed, it passed under the grant as incident and appurtenant to the land conveyed. In discussing this theory the Court, in the opinion delivered by Juno-n Aevey, said : “The deed is for a specific piece of land, being parcel of a larger piece held and owned by the grantor, and described by metes and hounds. In such case, in the absence of apt and express terms, no specific way outside the limits of the land granted, if not properly an existing easement, will pass as appurtenant. The only words in the deed that could possibly be relied on to convey the right of way in question are: ‘all and every the rights, privileges, appurtenances and advantages to the same belonging, or in anywise appertaining.’ If there was a way belonging to the estate, as a pre-existing easement, such way would pass by force of these terms, or even without the use of them; but such terms used in a conveyance of part of a tract of land as in this case, will not create a new easement, nor give a right to use a way which had been used with one part of the laud over another part, while both parts belonged to the same owner, and constituted an entire estate.

A party cannot have an easement in his own land; as all the uses of ¹⁹⁶ an easement are fully comprehended and embraced in his general right of ownership. * * * The general principle is that no right in a way which has been used during the unity of ownership will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo.” After stating the doctrine, as quoted from Gale on Easements, 81, that “upon the severance of an heritage a grant will he implied of all those continuous and apparent easements which have in fact been used by the owner during the unity, and which are necessary for the use of the tenement conveyed, though they have no legal existence as easements,” the opinion proceeds: “This is a very just and beneficial principle in those cases to which it is properly applicable, and it has been fully sanctioned in this State: but it would seem to be well settled that it does not apply to the case of an ordinary way, like the one in controversy here, not being at the time an existing easement. Grant v. Chase, 17 Mass. 447 -8; Worthington v. Gimson, 2 Ell. & Ell. 626; Pearson v. Spencer, 1 Best & S., 583-4; Dodd v. Burchell, 1 H. & Colt., 113, 120.” In Mitchell v. Seipel, 53 Md. 273 , where the distinction between grants and reservations of easements by implication was considered and stated, the case of Oliver v. Hook, supra, was cited as holding “upon abundant authority” that “the doctrine of implied grants had no application to the case of an ordinary, open and unenclosed way, not being at the time of the grant an existing easement.” It was observed by Judge Boyd, in the case of Eliason v. Grove, 85 Md. 227 , that “there are a number of cases which Hold that ways may he so improved and well defined as to bring them within the class of easements, or quasi easements, known as continuous and apparent, and hence pass by implied grants.” The Court in that case was dealing with a claim to the benefit of the principle stated with respect to- the use of a well, located immediately adjacent to the dividing line between the premises of the plaintiff and defendant, and which, during the unity of a preceding ownership, had been used in common by the occupants of both properties, ¹⁹⁷ access to the well, from the lot subsequently conveyed to the plaintiff, being afforded through a doorway maintained for that purpose in the division wall, from which the pump was