« ForrigeFortsett »
Argument for Warner.
property in trust for Haller and Wood, one-half each. About the same time an arrangement was undertaken to be made by Haller, with the knowledge of Wood, by the terms of which, upon the payment of $4,000 upon the McReynolds trust, the ten-foot strip would be released therefrom, and $4,000 was borrowed from the bank upon a security of $4,000 of the McReynolds notes, which loan, not having been paid, the release has not been obtained. On the first of April, 1899, Talbott purchased Haller's remaining one-half interest in the Victoria Flats property, and also one-half interest in that covered by the McReynolds trust, and Wood purchased Haller's remaining one-half interest in the McReynolds equity. The purchase price paid by Talbott was $3,100, and by Wood for the remaining one-half interest in the McReynolds equity, $250. Thus Wood and Talbott became the owners of the equities of redemption in both lots.
The Supreme Court gave the Warner trust a lien upon the ten-foot strip as part of the mortgage premises, a second lien to the Grayson trust, and ordered the property sold as an entirety, at the option of the trustees appointed to sell.
When the case was in the Court of Appeals, upon appeal from the original decree of sale, that court modified the decree below in so far as it gave the Warner trust any lien upon the ten-foot strip on the south and west sides, and ordered a decree in favor of the Grayson trust upon this strip as an casement, and that the property be sold as an entirety or in parts, according to the discretion of the trustees ordered to sell. 22 App. D. C. 432. When the case went back to the Supreme Court the modified decree of sale was entered, from which an appeal was taken to the Court of Appeals, which affirmed the decree of the Supreme Court, 24 App. D. C. 55, and these appeals were sued out to this court.
Mr. B. W. Parker, with whom Mr. R. Golden Donaldson was on the brief, for appellants Warner and Wine:
The holders of the notes secured by the Warner and Wine
trust are equitably entitled to the benefit of the easement over the ten-foot strip, for the reason that the $75,000 which they advanced was the means of erecting the building, and thereby çreating the security.
All improvements and betterments made upon real estate, by the mortgagor, or those claiming under him, after the execution of the mortgage, inure to the benefit of the mortgagee and become a part of the security for the debt. 10 Am. & Eng. Ency. of Law, 1st ed., 260; 16 Am. & Eng. Ency. of Law, 2d ed., 119; Owen v. Fields, 102 Massachusetts, 102; 1 Jones on Mortgages, $ 681; Scanlon v. Geddes, 112 Massachusetts, 17; Snow v. Orleans, 126 Massachusetts, 456; Martin v. Beatty, 54 Illinois, 100; Rice v. Dewey, 54 Barb. 455; Water Co. v. Fluming Co., 22 California, 621; Booream v. Wood, 27 N. J. Eq. 371; Childs v. Dolan, 5 Allen (Mass.), 319; Holmes v. Morse, 50 Maine, 102; Butler v. Page, 7 Met. (Mass.) 40; Graeme v. Cullen, 23 Gratt. (Va.) 266; Wharton v. Moore, 84 N. Car. 479.
No authority need be cited to the effect that the deed of trust in question is in legal effect a mortgage.
Although there was no house upon the land mentioned in the Warner 'trust when it was executed, there is no doubt but these appellants have a lien upon such house. When erected it became a part of the land, and it follows that the easements did also. The easements are a part of the dominant estate and inhere in it, and cannot exist or be conveyed separate from it. Moore v. Crose, 43 Indiana, 30. They inure to the benefit of the mortgage security upon it. . 10 Am. & Eng. Ency. of Law, 2d ed., 402; Hankey v. Clark, 110 Massachusetts, 262; Shepherd v. Pepper, '133 U. S. 622; James V. Jenkins. 34 Maryland, 1; Evans v. Dana, 7 R. I. 306; Washburn's Easements, 4th ed., 664; Powell v. Sims, 5 W. Va. 635; Turner v. Thompson, 58 Georgia, 268; Rennyson's Appeal, 94 Pa. St. 147; Sutphen v. Therkelson, 38 N. J. Eg. 318; Whiting v. Olney, 3 Mason, 280.
Under the grant of a thing whatever is parcel of it, or of the
essence of it, or necessary to its beneficial use and enjoyment, or in common intendment included in it, passes to the grantee.
This principle is based upon the maxims that no man shall derogate from his own grant, and whoever grants the same shall be understood to grant, also, whatever is indispensable to the full beneficial enjoyment of it.
The implied grant of an easement will be sustained, in cases of necessity. Rosewell v. Pryor, 6 Mod. 116; Palmer v. Fletcher 1 Lev. 122; Buss v. Dyer, 125 Massachusetts, 287; Collier v. Pierce, 7 Gray, 18; Story v. Odin, 12 Massachusetts, 157; Insurance Co. v. Patterson, 103 Indiana, 582; Lampman v. Milks, 21 N. Y. 505; Smyles v. Hastings, 22 N.Y. 217; Clawson v. Primrose, 4 Del. Ch. 643; Cave v. Crafts, 53 California, 135; Ray v. Sweeney, 14 Bush. (Ky.) 1; Bank of British North America v. Miller, 6 Fed. Rep. 545; Sheets v. Selden, 2 Wall. 177; New Ipswich Factory v. Batchelder, 3 N. H. 190; Rogers v. Sinsheimer, 50 N. Y. 646; Havens V. Klien, 51 How. (N. Y.) 82; Siebert v. Levan, 8 Pa. St. 383; Reiner v. Young, 38 Hun, 335; Grace Church v. Dobbins, 153 Pa. St. 294; United States v. Appleton, 1 Sumner, 492.
Mr. John Ridout, and Mr. Charles F. Carusi for Wood and Talbott.
A written instrument will not be reformed for mistake or fraud unless clear, positive and convincing evidence be produced showing the existence of such mistake or fraud.
No one can have a de facto or any other kind of easement in his own land, and there is nothing in the language of the deed of trust of December 20, 1897, or in the attendant circumstances, from which any intention to convey more than the land described by metes and bounds and the improvements thereon can be gathered.
An easement must be in the lands of another. 14 Cyc. 1139.
There is nothing in the record to show that Haller or the appellees, or anybody else, conceived that Haller had a de facto
easement in the adjoining ground, which he tried expressly to convey to the appellees under this language in his deed.
In the District of Columbia an easement of light and air cannot be acquired by implication. In the United States the English doctrine of implied easements of light and air has been repudiated. Leech v. Schroeder, L. R. 9 Ch. App. 463; Cherry v. Stein, 11 Maryland, 1; but see Janes v. Jenkins, 34 Maryland, 1. In most of the cases cited by counsel for the Warner trust, the easement was sustained on other grounds, generally that of necessity, and the light and air element was mere dicta.
The doctrine of implication from necessity'seems, therefore, to have existed in this country as a theory in the minds of some judges rather than as a rule of law, and there is no implied grant of the right to light and 'air over the grantor's other land adjoining the land conveyed. Kennedy v. Burnap, 52 Pac. Rep. (Cal.) 843; Hutchins v. Munn, 22 App. D. C. 88; Keiper v. Klein, 51 Indiana, 316; Randall v. Sanderson, 111 Massachusetts, 114; Keats v. Hugo, 115 Massachusetts, 204; Palmer v. W etmore, 2 Sandf. 316; Meyers v. Gemmel, 10 Barb. 537; Shipman v. Beers, 2 Abb. (N. Car.) 435; Mullen v.
. Stricker, 19 Ohio St. 135; Haverstick v. Sipe, 33 Pa. St. 378; Robinson v. Clapp, 65 Connecticut, 365; Turner v. Thompson, 58 Georgia, 268; Morrison v. Marquardt, 24 Iowa, 35, 444; Colier v. Pierce, 7 Gray, (Mass.) 18; Rennyson's Appeal, 94 Pa. St. 147; Powell v. Sims, 5 W. Va. 1.
The case of Shepherd v. Pepper, 133 U. S. 626, 650, does not justify the decree in this case either as to the easement or as to the sale as an entirety. Wood and Talbott are entitled to have the ground adjoining the apartment sold separately subject to the $12,000 trust.
Mr. J. J. Darlington, with whom Mr. Jesse E. Potbury was on the brief, for Grayson, trustee.
It is impossible upon this record to contend that Wood and Talbott stand in a better position than Haller would do if he were still the owner of the equities in the two properties.
Argument for Grayson.
The case falls under Manogue v. Bryant, 15 App. D. C. 245, and see p. 256 as to appellant's contention that the appellees were negligent in not having a survey or measurement inade, in order to ascertain whether the building, as erected, was within the lines of the trust deed. Frizzell v. Murphy, 19 App. D. C. 440, 446; Shepherd v. Pepper, 133 U. S. 626, 650, controls this case.
200 U. S.
As to the application of the rule that where a man grants a thing, he grants with it everything necessary to its enjoyment, and a grant by the owner of a tenement will pass to the grantee all those continuous and apparent quasi-casements which are necessary to the reasonable enjoyment of the property granted, and which are at the time of the grant used by the owner of the entirety for the benefit of the part granted, these being regarded as easements appurtenant to the land granted. In order that such an casement may pass by implication, it must be annexed to the estate granted, must be reasonably necessary for the beneficial enjoyment of the same, and must be in open, apparent and continuous use at the time of the grant, 14 Cye. 1166; Durkee v. Railroad Co., 24 N. H. 489, all of which conditions concur in the case at bar.
A strict or indispensable necessity is not necessarily the condition of such implication; it is sufficient if the necessity be such as to render the casement necessary for the convenient and comfortable enjoyment of the property, and as it existed before the severance was made. See as to open, visible ditches, 14 Cyc. 1169; Thayer v. Payne, 2 Cush. 327; McElroy v. McLeary, 71 Vermont, 396; Stuyvesant v. Early, 58 N. Y. App. Div. 242; Sanderlin v. Baxter, 76 Virginia, 299; Quinlan v. Noble, 75 California, 250; a furnace flue, Ingalls v. Plamondon, 75 Illinois, 118; an alley way, Cihak v. Klekr, 117 Illinois, 643; Burns v. Gallagher, 62 Maryland, 462; a water ditch and water rights, Care v. Crafts, 53 California, 135; rights of way, Ellis v. Bassett, 128 Indiana, 118; McTavish v. Carroll, 7 Maryland, 352; stairways in a building, Galloway v. Bonesteel, 65 Wisconsin, 79; Geible v. Smith, 146 Pa. St. 276; a flow of water