Mitchell v. Seipel

Miller, J., delivered the opinion of the Court. This action was brought in December, 1878, by the appellee against the appellant to recover damages for closing and obstructing an alley between two houses then separately owned by the respective parties. The case presents an important and interesting question respecting the law of easements. The facts necessary to be stated, and about which there is no dispute are these: In the year 1839, Daniel Collins became the owner under a lease for ninety-nine years renewable forever of a lot ground in the City of Baltimore, fronting thirty feet on West street, and extending back eighty feet to Gould lane, a public alley twenty feet wide.

The lot was then vacant, but soon after his purchase Collins erected thereon two brick houses fronting on West-street. These houses were built about the same time, the first having a front of fifteen feet, and the second a front in the lower story of twelve feet and six inches, and in the upper stories of fifteen feet, thus leaving an alley of two feet and six inches between them, covered by the joists which supported the second floor of the second house. These joists projected over the alley and into the adjoining wall of the first house. The alley thus covered was open to the street, and extended hack between the houses about thirty feet.

At its inner terminus two gates were placed, which opened respectively into the rear premises and yards of each house, and it was used by the occupants of each as a common passage way to and from the street. Each house had, as usual, a front door opening upon the street, and from the end of the alley a fence was built which extended back to Gould lane, and divided the lot into two parts, giving to each a width of fifteen feet. During his life, Collins continued the owner of the whole ²⁶³ property and occupied one of the houses. After his death his widow became the owner under his will, and so continued until the year 1865, when by an order of the Orphans’ Court, and in pursuance of a power contained in the will, the executor of Collins sold and conveyed the entire property to George T. Waters.

While the unity of possession thus continued, it is very clear no easement in respect to this alley existed. A party cannot have an easement in his own land, inasmuch as all the uses of an easement are fully comprehended in his general right of ownership. Oliver vs. Hook, 47 Md., 308 . But this unity of ownership was severed on the 8th of June, 1865, by Waters the owner, who on that day sold and conveyed the second house and lot to George W. Chandler, from whom the defendant through several mesne conveyances derived his title to the same.

This conveyance was an absolute and unqualified grant, describing the property by metes and bounds, which included the whole of this alley, and contained no reservation of the right to use the same for the benefit of the house and lot retained by the grantor. Waters retained ownership of the first house and lot until the 29th of July, 1868, when he sold and conveyed the same to the plaintiff by a similar grant, which embraced no part of the alley. The defendant obtained his title to the second house and lot, (as before stated by mesne conveyances from Chandler, the first grantee thereof,) in October, 1874, and shortly before this suit was brought, prevented the plaintiff from using the alley, by placing upon it buildings and other obstructions. There is no pretence that the plaintiff had acquired a prescriptive right to use the alley, nor is the case complicated hy any easements of drainage or sewerage.

There are no pipes or drains, either underground or otherwise, •from one house to the other, and thence to a common outlet, nor does the surface drainage pass through the alley. The proof shows that the natural flow of surface water, ²⁶⁴ and. that from the hydrants on both premises is in the opposite direction, towards and to G-ould lane. The alley was therefore simply a convenient passage way. Without doubt it was open and apparent, and was made and designed by Collins, for the common use and benefit of both houses, and was in fact so used by the occupants of both, until obstructed by the defendant, but it is equally clear' that Collins and those who succeeded him in the ownership of both could have closed it, and re-arranged the premises at pleasure.

The real question in the case then is: Does the law attach to the unqualified grant in 1865, from Waters to Chandler, of the second house and lot, by metes and bounds, which include the whole of this alley, an implied reservation of the use of it for the benefit of the house and premises retained by the grantor ? Upon this point, our investigations have led us to an examination of the large number of authorities cited by counsel, as well as many others, and upon no question have we found so great a contrariety of judicial opinions and dicta, if not of actual decisions. There is a general concurrence of authority, both in England and in this country in support of the proposition, that on the grant, by the owner of a tenement, of part of that tenement as it is then used and enjoyed, that will pass to the grantee all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been, and are at the time of the grant used by the owner of. the entirety for the benefit of the part granted, and so it was decided by this Court in Janes vs. Jenkins, 34 Md., 1 . But the question here is, whether upon such a grant, the law will engraft a reservation of such easements in favor of the part retained by the grantor.

Upon this point, the authorities in England, until quite recently, have been conflicting. As early as the case of Palmer vs. Fletcher, 1 Lev., 122, the question was mooted, but there was a difference of opinion among the Judges, ²⁶⁵ and it was not decided. The subsequent case of Nicholas vs. Chamberlain, 3 Cro. Jac., 121, was decided upon demurrer, and in the report of it, the pleadings are not given.

It has been often cited, and sometimes for the purpose of sustaining the position that in all cases of what are termed apparent and continuous easements, the doctrine of implied reservation stands upon exactly -the same footing as the doctrine of implied grant, but in so far as it may be thought to sustain that position, we have the high authority of Thesiger, L. J., who delivered the judgment of the Court of Appeal in Wheeldon vs. Burrows, 12 Ch. Div., 31, for the statement that it has again and again been overruled. If, however, in addition to the doctrine of implied grant, it merely decides that there may be an implied reservation of what are termed easements of necessity, then it is quite in accord with other English authorities. In the later case of Tenant vs. Goldwin, 2 Ld.

Ray., 1089, so great a Judge as Lord Holt, in delivering the judgment of the Court, refers to Fletcher vs. Palmer, and says: “If, indeed, the builder of the house sells the house, with the lights and appurtenances, he cannot build upon the remainder of the ground so near as to stop the lights of the house, and, as he cannot do it, so, neither, can his vendee. But if he had sold the vacant piece of ground and kept the house, without reserving the benefit of the lights, the vendee might build against the house. But in the other case where he sells the house, the vacant piece of ground is by that grant charged with the lights.” Here the doctrine of implied reservation is plainly denied. In the first edition of Odie on Easements, the learned author sets out the doctrine of the French law to the effect that if the proprietor of two heritages between which there exists an apparent and continuous servitude, disposes of one of them without any stipulation in the contract respecting the servitude, it continues to exist, actively or ²⁶⁶ passively, in favor of the heritage alienated or upon it.

And with this he says the English law appears to agree, and declares that the only opposition to this doctrine is the opinion of Lord Holt in Tenant vs. Goldwin, which he pronounces a mere dictum, or, at most, an opinion founded probably upon the civil law, whereas the doctrine of the English law on this subject is probably of French origin. In the case of Pyer vs. Carter, 1 Hurls. & Nor., 916, the Court of Exchequer adopted this statement of' Mr. Gale, and practically denied the existence in such cases of any distinction between an implied grant and an implied reservation with reference to such easements. But this case soon gave rise to controversy. It is supposed to have been approved by the House of Lords in Ewart vs. Cochrane, 9 Jurist, 925, but that case, which was an appeal from the Court of Sessions in Scotland, only involved the question whether that was an implied grant of the easement.

The plaintiffs were the owners of a tannery, and the defendant was the owner of the adjoining house and garden. Both properties at one time belonged to the same owner, and there was a drain carrying off the surplus water from the tanyard into a cesspool in the adjoining garden, where it disappeared by absorption. The tannery was sold by the common owner in 1819 to a party under whom the plaintiffs derived title, and the defendant purchased the house and garden in 1858, and then stopped up the drain. The Court below decided in favor of the plaintiffs, on the ground that there was an implied grant of the easement by the conveyance of the tannery in 1819.

In the House of Lords, the Chancellor, (Lord Campbell) said : “ The ground on which I proceed is this — that this is a servitude which the grant implies.. I cannot entertain the slightest doubt upon that. I mean on the grant accompanied by the enjoyment which existed at the time the grant was made.” He then cites Pyer vs. Carter, as sustaining this position of an implied grant, as ²⁶⁷ the opinion of the Court of Exchequer undoubtedly does, and in Janes vs. Jenkins it was cited by this Court for the same purpose only. In neither of these cases did any other question than that of an implied grant arise.

In the subsequent case of White vs. Bass, 7 H. &. N., 722, the Court of Exchequer itself decided in direct conflict with the doctrine of implied reservation it had previously announced in Pyer vs. Carter. That case may be stated thus : The owners in fee of a house and adjoining land in 1856 conveyed the land to the defendant, and in 1857 sold the house to the plaintiff, and it was held, al' the Judges concurring, that the plaintiff could maintain no action against the defendant for building on the land so as to obstruct the light and air which formerly came to the windows of his house. Ohannell, B., quotes with entire approval the opinion of Lord Holt in Tenant vs. Goldwin, and Wilde, B., says : “It is said that the owners who conveyed to the trustees the reversion in fee of the land, having at that time themselves the use of the neighboring house, is a circumstance from which it ought to be implied that, in granting fully and freely, as they did, the land, they meant to restrict the grantees in building upon it.

Ho authority has been cited for that position. The only authority that at all approaches that view is the case of Pinnington vs. Galland, 9 Exch., 1; but all that case decided is that the Court might, as matter of law, imply a reservation of way where it was a ivay of necessity. To this extent the law has gone — that where the owner of a close surrounded by his land grants the close to another without any express reservation of a way, if there is no other means of getting to the close, the law will imply a way over the grantor’s land as incident to the grant. That is no authority for implying in this case a restriction upon the grantees of the land that they shall not build upon it so as to obstruct the light and air of the plaintiff’s house.” ²⁶⁸ Next is the case of Suffield vs. Brown, 4 De G. I. S., 185, in which Lord.

Chancellor Westbury, in a very vigorous opinion, assails the doctrine of implied reservation announced by Mr. Gale and adopted in Pyer vs. Carter, and he holds, that to imply a grant or reservation of an easement as arising upon the disposition of one of two adjoining tenements by the owner of both, where the easement had no legal existence anterior to the unity of possession and is not one of necessity, is a theory in part not required by, and in other part inconsistent with the principles of English law which regulate the effect and operation of grants of real property; that if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, and the operation of a plain grant not pretended to be otherwise than in conformity with the contract between the parties ought not to be limited and cut down by the fiction of an implied reservation ; and that the grantor cannot derogate from his own absolute grant so as to claim rights over the thing granted, even if there were at the time of the grant, continuous and apparent easements enjoyed by an adjoining tenement which remains the property of the grantor. With respect to implied reservations in such cases, he says: “ This is a very serious and alarming doctrine; I believe it to be of very recent introduction; and it is in my judgment unsupported by any reason or principle when applied to grants for valuable consideration.” It is said, however, that the facts of this case did not require the announcement of such an opinion, and that Pyer vs. Carter, if overturned by Suffield vs. Brown, has been set up again by the decision in Watts vs. Kelson, Law Rep., 6 Ch. App., 166. It is true that in the course of the argument in that case expressions fell from several of the Judges approving of Pyer vs. Carter, but in the considered opinion of the Court delivered by Mellish, L. J., we find no disapproval of Suffield vs. Brown, nor any approval of ²⁶⁹ the doctrine of implied reservation contained in Pyer vs. Carter, and besides the only question the Court had to decide in that case was wYi&t passed by the grant.

After this Lord Chancellor Chemlseord, who had participated in the decision of Ewart vs. Cochrane, expressed in the case of Crossly & Sons vs. Lightowler, (Law. Rep., 2 Ch. App., 478,) his entire approval of what was said by Lord Westbury in Suffield vs. Brown, and