Summary
In Bullis v. Schmidt, 5 Wis.2d 457, 93 N.W.2d 476 (1958), the court reiterated the rule of Miller v. Hoeschler that the necessity for any easement other than a right-of-way must be so clear and absolute that without the easement the grantee cannot enjoy the normal use of the property for which he bargained.
Summary of this case from Matter of LampertOpinion
November 3, 1958 —
December 2, 1958.
APPEAL from a judgment of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Circuit Judge. Reversed.
For the appellants there was a brief by Ebert, Kuswa Ebert, attorneys, and Lawrence Jay Ebert of counsel, all of Milwaukee, and oral argument by Lawrence Jay Ebert.
For the respondents there was a brief and oral argument by Robert B. Ells of Milwaukee.
Action by the plaintiffs Harvey R. Bullis and Isabelle J. Bullis, his wife, to recover damages from the defendants Joseph Schmidt and Elsie Schmidt, his wife, for breach of a covenant against incumbrances contained in a warranty deed executed by the defendants to the plaintiffs.
In 1938 the defendants inherited lots 4, 5, and 6 in a certain subdivision in the city of Milwaukee, which three lots are located at the southeast corner of Capitol drive and North Eighth street in such city. These lots are each 30 feet wide as they front on Capitol drive and extend back 63 feet in length from such street. Lot 4 is the easterly and lot 6 the westerly of the three lots. Thus lot 6 is the corner lot abutting on both Capitol drive and North Eighth street.
At the time the defendants acquired title a house had been erected on lot 4 and the easterly ten feet of lot 5, and sewer and water connections had been installed underground across lots 5 and 6 so as to connect with mains in North Eighth street. Sometime between 1949 and 1951 the defendants conveyed lot 4 and the east 10 feet of lot 5 to one Sellenheim, who still owns the same but is not a party to this action. There is no evidence that such deed contained any express grant of an easement to maintain the sewer and water pipes across the remainder of the defendants' property, and the plaintiffs make no contention that it did. Thereafter on June 21, 1954, the defendants conveyed lot 6 and the west 20 feet of lot 5, which was then vacant land, to the plaintiffs by a warranty deed which contained the usual covenant against incumbrances. At the time of the execution of such deed neither the defendants nor the plaintiffs knew of the existence of the underground sewer and water pipes.
The plaintiffs retained an architect and contractor for the purpose of constructing an office building on their property. On December 3, 1954, while a subcontractor of the contractor was doing the excavating in connection with the erection of such building, the underground sewer and water pipes were accidentally severed. Sellenheim notified the defendant Joseph Schmidt of this fact. Schmidt engaged a plumber who provided the Sellenheim property with new sewer and water facilities by connecting onto the mains lying underneath Capitol drive without the necessity of maintaining any further pipes across the plaintiffs' premises. The plumber made a charge of $490 for this and Schmidt paid the same.
The plaintiffs' contractor made a charge of $564 against the plaintiffs covering items for providing temporary sewer and water services to the Sellenheim house, removing the underground pipes, and added expense incurred in conducting the excavating because of the presence of such pipes. The instant action was instituted to recover such $564.
The defendant made an offer of judgment in the sum of $150 and costs. This offer was rejected by the plaintiffs and the case went to trial before the court without a jury. The court determined that an implied grant of an easement existed in behalf of the Sellenheim property to maintain the water and sewer pipes across the plaintiffs' property; that such implied easement constituted an incumbrance; and that the sum of $110 would reasonably compensate the plaintiffs for the breach of the covenant against incumbrance contained in the warranty deed executed by the defendants to the plaintiffs. The trial court also determined that in addition to such $110 the plaintiffs were entitled to recover as part of their damages the sum of $75 attorneys' fees.
Judgment was entered on February 10, 1958, in favor of the plaintiffs and against the defendants for $185 damages together with costs and disbursements. From such judgment the defendants have appealed.
The plaintiffs ground their cause of action for breach of the covenant against incumbrances upon the alleged existence of an implied easement, to maintain the underground sewer and water pipes across the plaintiffs' premises, which easement runs for the benefit of the adjoining property to the east.
The subject of implied easements is well discussed in 2 American Law of Property, pp. 255-263, secs. 8.31-8.43; 1 Thompson, Real Property (perm. ed.), pp. 630-674, secs. 390-411; and Anno. 58 A.L.R. 824. The last-mentioned annotation is limited specifically to implied easements with respect to drains, pipes, and sewers. The law of implied easements, accepted in a majority of the states, is based upon the assumed intention of the parties at the time of the severance of the quasi-dominant and quasi-servient parcels formerly subject to common ownership. The facts necessary to be present in order to have such an implied easement come into being are stated in 1 Thompson, Real Property (perm. ed.), p. 630, sec. 390, to be as follows :
"An easement may be created by implication as well as by express grant. However, to create an easement in this manner over the property of another, there must have been a separation of title, and a use before separation took place which continued so long and was so obvious or manifest as to show that it was meant to be permanent, and it must appear that the easement is necessary to the beneficial enjoyment of the land granted or retained."
Thompson also points out that where the quasi-dominant parcel is first conveyed by the common owner any resulting implied easement is one created by grant, while, if the quasi-servient tenement is first conveyed, such resulting implied easement is one created by reservation. Ibid., p. 633, sec. 391. In some of those states which have adopted the majority rule as to implied easements, more-relaxed standards have been applied to those created by grant as distinguished from those created by reservation. This is because a grantee may take the language of his deed most strongly in his favor while a grantor cannot derogate from his own grant. Wells v. Garbutt (1892), 132 N.Y. 430, 30 N.E. 978. Because in the instant case the defendants conveyed away the quasi-dominant tenement first, we are here concerned with an alleged implied easement created by grant and not by reservation.
However, Wisconsin has firmly and repeatedly rejected the majority rule of implied easements. Tarman v. Birchbauer (1950), 257 Wis. 1, 42 N.W.2d 158; 34 Marquette Law Review, 123.
In the Tarman Case (p. 5), this court declared that "easements in the land of another, with the exception of rights of way by necessity, can only be created by grant or prescription." We are inclined to the view that the statement, that the only implied easements recognized in this state are rights of way by necessity, may be too narrow an interpretation of the position previously taken by this court in view of the cases of Miller v. Hoeschler (1905), 126 Wis. 263, 105 N.W. 790, 8 L.R.A. (N.S.) 327, and Christensen v. Mann (1925) 187 Wis. 567, 204 N.W. 499.
In Miller v. Hoeschler, supra, this court stated (p. 270):
"We cannot avoid the conclusion that, even if in some extreme cases there must be any easement other than right of way implied from necessity, that necessity must be so clear and absolute that without the easement the grantee cannot in any reasonable sense be said to have acquired that which is expressly granted; such indeed as to render inconceivable that the parties could have dealt in the matter without both intending that the easement be conferred."
An implied easement, other than one for right of way, was recognized in Christensen v. Mann, supra, in the following language of the opinion (p. 593):
". . . where an owner of a tract of land with a building thereon sells part of the land on which the building stands, retaining ownership of the balance of the land extending to the building, or where either party subsequently sells his interest, the right of lateral support not only of the land but also of the building arises in law, by implication, from necessity."
We deem the above-quoted extract from the opinion in Miller v. Hoeschler, supra, clearly points out the test that must be applied, in determining whether any easements other than rights of way by necessity, may be created by grant in Wisconsin by implication. Such test is that necessity must be so clear and absolute that without the easement the grantee cannot enjoy the use of the property granted to him for the purposes to which similar property is customarily devoted. We would place the necessity of connecting onto city water and sewer mains in an urban community such as the city of Milwaukee in this category.
The fact, that for an expenditure of $490 it was possible for the Sellenheim property constituting the quasi-dominant tenement to connect onto the water mains underlying Capitol drive without the necessity of any pipes crossing plaintiffs' land, conclusively establishes that the test of necessity had not been met in order to have an implied easement over the plaintiffs' property. Under the majority rule of implied easements by grant the requirement of necessity is rather elastic and is met if the continued use of existing pipes, sewers, or drains across the quasi-servient estate is reasonably necessary or convenient. 2 American Law of Property, p. 263, sec. 8.43; 1 Thompson, Real Property (perm. ed.), p. 663, sec. 406; and Anno. 58 A.L.R. 824, 829. However, this is not the test of necessity laid down in Miller v. Hoeschler, supra, quoted above. Under the more-liberal majority rule our court would have likely reached the opposite result in Tarman v. Birchbauer, supra, and held that the continued use of the sidewalk was reasonably necessary or convenient for occupiers of the quasi-dominant tenement.
We consider that the past decisions of this court with respect to implied easements constitute a rule of property which requires us to adhere to them under the principle of stare decisis.
Even some courts which have adopted the majority rule of implied easements hold that no implied easement is created where the quasi-dominant parcel, by the expenditure of a reasonable sum, can secure the enjoyment of the same use or privilege as would be provided by imposition of an easement upon the quasi-servient land. Dolliff v. Boston Maine R. (1878), 68 Me. 173 (underground drain where it was possible by an expenditure of not to exceed $175 for the owner of the quasi-dominant parcel to run such drain into an abutting street); Oldfield v. Smith (1939), 304 Mass. 590, 24 N.E.2d 544 (underground water pipes which could be relocated in such a manner as not to cross the quasi-servient land); and Wreggitt v. Porterfield (1950), 36 Wn.2d 638, 219 P.2d 589 (a case of alleged implied easement by reservation rather than by grant of a right to maintain a sewer in which the court found a similar privilege could be secured with reasonable trouble and expense). A case contra is Wiesel v. Smira (1928), 49 R.I. 246, 142 A. 148, 58 A.L.R. 838 .
We, therefore, conclude that no implied easement existed for the maintenance of the sewer and water pipes across the plaintiffs' land in the instant case. Without such an easement, the defendants' covenant against incumbrances was not breached. The fact that the existence of the pipes caused expense to the plaintiffs in removing such pipes does not make the same an incumbrance. We express no opinion as to whether the plaintiffs were under a duty to give reasonable notice to Sellenheim, the owner of the quasi-dominant tenement, of the proposed severance of such pipes. If such duty did exist it arose under principles of tort law unrelated to covenants against incumbrances.
The brief of appellant defendants raises other issues which we find it unnecessary to pass upon.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.
BROWN, J., took no part.