Dempsey v. Kipp
Daniel Dempsey Et Al., Appellants, v. James N. Kipp, Respondent
Headnotes
Summary
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Opinion of the Court
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 464
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 465
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 466 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 468 It was properly conceded by the counsel for the plaintiff, in the present case, that the proceedings for laying out the road were, in view of the law as it existed at that time, unconstitutional and void. ( Taylor v. Porter, 4 Hill, 140 .) These proceedings are only important so far as they bear on the acts of the grantors of the plaintiff, and shed light on the nature of the consent of Arnsberger to the act of laying out the road over his land. It was not disputed by the defendant that, while the acts of the commissioner in laying out the road were nugatory, the plaintiff might have a right of way derived from the consent of Arnsberger. Such must be the law on general principles of equity, even though the consent be given by parol, if there be sufficient in the case to take it out of the statute of frauds. The question at issue between the parties is thus narrowed down to the nature of Arnsberger's consent. On this point there was some conflict of evidence at the trial. The referee has found as a fact, that though the commissioner in his order directed the road to be laid out wholly over the land of Arnsberger, yet, as a matter of fact, it was laid out in part over his land, and in part over that of Miller, and that Arnsberger only consented to such a road as that, and not to one a rod wide, laid out wholly over his own land. This, I think, is the reasonable construction of his findings, considered as a whole, though it must be admitted that his phraseology is not absolutely clear. There being some evidence to sustain this finding, it cannot be disturbed in this court. Rogers, the grantee of Miller, having revoked any license which his grantor may have given to Leddick to pass over his portion of the land, the defendant, as successor of Arnsberger, claims that Arnsberger's consent is thus practically nullified. His argument is, briefly stated, as follows: Arnsberger consented to a road, one rod wide, to be laid out, one-half over his own land, and one-half over that of Miller; the road, as to Miller's half, is inoperative, therefore Arnsberger gave no consent to any road whatever *Page 469 — not even to one of half a rod in width. The plaintiffs, on the other hand, insist that Arnsberger's consent is still operative and effectual as to a road, one-half rod in width, over his own land. On this point, I think that the weight of argument is with the plaintiffs. True, by the practical acts of the parties, the road did not take effect exactly as was intended, still the variation was immaterial as between the plaintiffs' grantor and Arnsberger. It in no respect increased the burden on Arnsberger's land. If the road had been laid out on the land of both parties, the plaintiffs might lawfully have traveled wholly over the lands of Arnsberger. They could do precisely what he might do with a road half a rod in width. It cannot be supposed, in law, that his consent would have been affected by a change in circumstances wholly immaterial.
Moreover, Leddick advanced a consideration for the road which Arnsberger retained. The latter must be supposed thereby to have waived any variation between his real and his apparent consent. Prima facie, the plaintiffs had an equitable right, on this ground, to specific performance; while he cannot have the whole road, he may insist on such part as the successor of Arnsberger is able to give him. Had Leddick, when the road was laid out, been the owner in fee of Espenour's lot, I should clearly have been of the opinion that, as between him and Arnsberger, he would have acquired a permanent right of way.
I have now reached the question as to the effect of Leddick's acts in relation to Espenour. He may, in the first instance, be considered as tenant at will of Espenour. In that character it may be assumed that he acquired a right of way from Espenour's land to the highway. The conduct of the parties shows that their intention was that the right of way should be permanent. Trees were cut down, sluices were made, and a fence put up between the lane and the residue of Arnsberger's land. These acts are inconsistent with the mere use of the road for a fugitive and temporary purpose. They look to continuance of the road for the use of the owner. *Page 470 The intention being clear, there appears to be no difficulty in holding that Leddick, as tenant, may be the medium whereby the right of way passed to his landlord, Espenour. He was a sort of bailiff or agent to make the acquisition for his landlord. As soon as Leddick acquired the right, it enured to the landlord's benefit. It is settled law, that all that the tenant thus acquires from third persons appertains to the landlord. The rule is applied even to encroachments made by him upon the lands of others; a fortiori, would it be applicable where the acquisition is made by consent of, or through contract with, the owners of adjoining lands. (1 Wn. on Real Property, 483.) The cases on the subject of encroachment may be stated by way of illustration. They maintain that if a tenant, while in possession, encroaches upon adjacent lands, and encloses portions of them, and thus acquires a prescriptive title, he is presumed by law to have acted with a view to add to the interest of his landlord. Undoubtedly, this presumption may be rebutted, but where there is no countervailing proof, the rule is of uniform application. ( Doe v. Jones, 15 M. W., 580; Doe v. Rees, 6 C. P., 610; Andrews v. Hailes, 2 Ellis Black., 349; Doe v. Tidbury, 14 Com. Bench, 304; Lisburne v. Davies, L.R. [1 C.P.], 260; Kingsmill v. Millard, 11 Exch., 313.) These cases establish the doctrine that a tenant, even from year to year, has a capacity to acquire a permanent interest in adjacent lands belonging to third persons for the use of the leased property, which shall enure to his own benefit while the tenancy continues, and on its expiration shall appertain to his landlord. There appears to be no difference in principle whether the acquisition is made by prescription or by contract. The tenant's intent is the main subject of inquiry. In the case at bar, the intent of both parties, as has been already shown, is plain. From all the acts taken together, it is impossible to suppose that the intent was any thing else than to give Espenour a continuing right of way, Leddick having, at the time the road was laid out, the mere possession, to be terminated at Espenour's will. *Page 471
The case may now be regarded from another point of view. The plaintiff offered to show, at the trial, that there was a parol understanding between Leddick and Espenour, prior to the purchase by the latter of the property of the former, and being a part of the transaction, that Leddick should procure a right of way, and that a portion of the purchase-price of the land was to be retained by Espenour to abide the result. Had such testimony been admitted, would it have been material ? In the outset it must be conceded that if there had been such a parol understanding, it could not have been received in evidence as between the parties to the deed. The rule that parol evidence is inadmissible to vary the terms of a valid written instrument would have been applicable. A stranger to the contract, however, cannot invoke this rule. (1 Greenleaf on Evidence, § 279.) It is there said, "the rule is applied only in suits between the parties to the instrument, as they alone are to blame if the writing contains what was not intended, or omits that which it should have contained. It cannot affect third persons." (1 Pothier on Obligations, by Evans, p. 4, chap. 2, art. 3 n; 2 Stark. Ev., 575; Edgerley v. Emerson, 3 Foster, 555 ; Langdon v. Langdon, 4 Gray, 186 .) In the case at bar, the defendant cannot avail himself of this rule. It is immaterial to him whether the agreement to procure a right of way was introduced into the plaintiff's deed or left to oral understanding.
The only serious inquiry is, whether the right of way, obtained under such a parol agreement, would pass to Espenour as appurtenant to his land. It certainly would not in the view of a court of law, as the rule that it must be in writing and under seal, as an incorporeal hereditament, was not complied with. I see no objection to the view that it would be transferable in equity. Suppose that there had been a clause in Espenour's deed, that Leddick would procure for him a right of way, and he had subsequently fulfilled the agreement in an imperfect manner, by obtaining a writing not under seal — would not that, in equity, have belonged to Espenour? If so, the result must be the same in the case at *Page 472 bar, as the parol agreement for a right of way, executed and based upon a consideration, is of equal validity with a written agreement not under seal. So long as Arnsberger intended to grant a permanent right of way, and Leddick had agreed to procure one for Espenour, justice can only be done by holding that the parties substantially accomplished what they intended. This view is strengthened by the fact that the statute concerning private roads, provides that they shall be laid out for the use of the applicant, his heirs and assigns. It thus recognizes the assignability of the road, and it may be assumed that the consent of Arnsberger was, in accordance with the idea underlying the statute, to a road which was to be transferred or assigned with the land to which it was naturally an incident.
If this view is correct, the right to the way passed through the intermediate grants to the plaintiff. (Washburn on Easements, 25, and cases cited.) The court below, accordingly, erred in excluding the offer to show the parol agreement between Leddick and Espenour.
The judgment should be reversed.
Concurrence
The question is, whether the plaintiffs have such an interest or right of way from their own land through land claimed by the defendant as that upon its being closed up or obstructed, by the defendant, an action can be sustained by the plaintiffs for the injury thus occasioned or threatened. The question must, probably, be determined upon the facts found by the referee, before whom the case was tried in the court below, and, so far as I regard them material, may be stated as follows: Prior to 1842 Jacob Leddick was the owner of the farm now owned by the plaintiffs, containing about fifty acres. The west line of the Leddick, or plaintiff's farm, was the division line between military lots numbers eighteen and nineteen, in the town of Fayette in the county of Seneca; and the south line was between the land of the plaintiffs and that of the defendant, then owned and occupied by John Arnsberger — both the farms *Page 473 of the plaintiffs and the defendent being subdivisions of military lot number nineteen, before referred to. The land adjoining both farms on the west was, in 1842, owned by one Thomas Miller, being military lot number eighteen, before named. In March, 1842, Leddick conveyed to John Espenour, and through him, in 1865, the plaintiffs derived their title to the fifty acre farm. After Leddick had conveyed to Espenour, and in March, 1842, in pursuance of a parol agreement made by him with Espenour at the time of his conveyance, and on the 16th of March, 1842, he made application to the commissioners of highways of the town of Fayette to lay out a private road for his use, commencing at the south corner of lots eighteen and nineteen, and running north on the line of said lots, through the lands of John Arnsberger and Thomas Miller, to the south line of the land of Espenour, then occupied by Leddick. This application was successful; and on the 23d of March, 1842, the commissioners ordered the road to be laid out to the width of one rod, making the line between lots eighteen and nineteen the west line of the road, and, of course, locating the whole of it on the land of Arnsberger. This road was soon after opened, or supposed to be, in this manner: The fence between the Miller and the Arnsberger farm was removed, as the referee states, "to the west line of the lots, about eight feet," and the road opened and worked, and turnpiked in some places. Three sluices were put in across the road, on the Arnsberger farm, and one on the Leddick farm; a fence was built on the east side of the lane, through Arnsberger's cleared land, the rails being cut and split from timber growing on the road, and the wood was removed from the road by Arnsberger. In this condition the road remained until 1848, or 1849, when one Rogers, having succeeded to the title of the Miller farm, removed the west fence, along the lane (or road) back, on the line between military lots numbers eighteen and nineteen, setting the corners of the fence on the worked part of the road and in part on the sluices across the same. Afterward, the owners and occupants of the Arnsberger farm took away the fence on the east *Page 474 side of the lane or road, and committed various acts obstructing the use of the road or any part of it; and for such alleged injuries the action is brought.
It is found by the referee that Arnsberger acquiesced in such a road as was opened by the commissioners, one-half on the Miller farm and one-half on his own, but he did not find that he ever assented to a road one rod wide to be opened wholly on his own farm. The referee then finds that "after Rogers had removed his east fence back on the line between lots numbers eighteen and nineteen, thus, in fact, crowding the whole road on the Arnsberger farm, I do not find any assent on the part of Arnsberger, or his grantees or tenants, of whom the defendant is one, to such a location of the road."
The effect of this finding is, I think, no more than that Arnsberger and his successors in title or possession did not assent to the act of Rogers in removing the fence on the west line of the road as opened, for that act did not per se thrust any more of the road on the land of Arnsberger than had hitherto, with his consent, been occupied for that purpose, and as I understand the case as it is presented for our judgment, no matter whether the plaintiff has any claim against Rogers or not, no more extensive claim is made against the successors of Arnsberger in the title and possession than would or could have been made if Rogers had never removed the fence on the west line of the road; and, as the matter stands before us, I do not see but that as between the present parties, it must be considered as if Rogers had never disturbed the west line of the fence as located when the road was opened in 1842, and to the road thus opened I think the case does not show that the parties represented by the defendant have ever made any objections. The plaintiff in this case, making no present complaint of the acts of Rogers in closing up one-half of the road to which their predecessors in title claim to have been entitled, and content themselves with requiring an observance on the part of the defendant of the rights they had in so much of the road as was upon the Arnsberger farm, if altogether it was maintained to the *Page 475 width of one rod. In that case eight feet only was required to be opened upon the farm last mentioned, and that is the extent of the plaintiff's claim. It is quite impossible to see how the defendant has suffered by the act of Rogers, and the plaintiffs for the present waiving any claim against Rogers, only ask that he shall be held to the same obligation that existed at the time the road was laid out; that is to leave undisturbed eight feet of the road on the land now owned by the defendant, precisely the same as if Rogers had not repudiated as to the eight feet of the road opened upon his land. If the plaintiffs are content with the eight feet of road, it certainly works the defendant no injury, for the way is only needed by the owner or occupant of the Leddick farm.
The order of the commissioners appears to have contemplated a road laid out wholly on the land of Arnsberger, if it be assumed that the drawn line between the farms of Arnsberger and Miller was the line between military lots numbers eighteen and nineteen, and there may be some confusion in the evidence as to that fact. It however appears to be the fact, and it is so claimed by the defendant, that when the road was actually opened and worked, one-half of it was on the land of Miller, and the other half on the land of Arnsberger. That Miller assented to this location and removed his fence eight feet further west, is quite apparent, and that Arnsberger gave his consent is not now denied. The actual laying out, locating and opening of the road was, therefore, consented to by the owners of the land over which it was laid, and I do not at present see why it was not lawfully laid out. ( Baker v. Braman, 6 Hill, 47 .) It was an open and notorious act in which all the parties then concerned participated, and none uttered a word of objection or dissent, and it was used as a private road by the owners and occupants of the Leddick farm for many years thereafter, with like acquiescence and assent. When Rogers became the owner of the Miller farm, he interfered with the west half of the road, but whether rightfully or wrongfully it is not for us now to determine. But this act of Rogers in no way concerned *Page 476 Arnsberger or his successors in title or possession, and conferred upon them no right to disturb so much of the road as was laid over the land of Arnsberger; and so far as I have been able to discover, the defence rests upon no other substantial foundation. If, as I am inclined to think, the road in the beginning was properly laid out, located and opened by common consent, the act of Rogers was wrongful, and that certainly gave the defendant no license to commit a like wrong; but if Rogers had excuse for his action, it affords the defendant no protection for a violation of the plaintiffs' rights in any portion of the road.
In the view of the case I have taken, I do not find it necessary to discuss the question whether or not, under any circumstances, easements or servitudes in land may be acquired other than by grant or prescription; but I think, upon the facts of this case, Arnsberger and his successors in title should be estopped from asserting any right to the eight feet of land laid out and occupied as a way, to the detriment of the owners of the Leddick farm. But the defence appears to rest upon the theory that the road, as actually opened, was one to which Arnsberger gave his unqualified consent, and that no fault could be found with it if Rogers had not interfered with that part located on the then land of Miller, with his consent; but inasmuch as Rogers had undertaken to repudiate the act of Miller, whether rightfully or wrongfully, the defendant thereby acquired the right to imitate his example by attempting to repudiate the acts and consent of Arnsberger, so far as the road had been located on his premises. Such a defence, I think, ought not to prevail, and I am of the opinion that a new trial should be granted.
All concur.
Judgment reversed. *Page 477
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