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TO PLAINTIFY, APRIL 19, 1913.

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(- Me. —, 128 Atl. 286.). Messrs. Emery & Waterhouse for appellants.

Messrs. Willard & Ford for appellee.

Philbrook, J., delivered the opinion of the court:

This controversy arises over disputed rights regarding a strip of land 16 feet wide and about 54 feet long, situated in Kennebunk, at Kennebunk Beach so-called. In August, 1919, the plaintiff herein brought suit against this defendant,

Ex. 6 buco K40, DU RONT SP WAY Elvira A. Hubbard, for trespass in entering upon this land and building

1, 2, CONCRETE WALK. a concrete walk thereon, over which Right of way because of necesshe, and her customers and patrons, sity.--The land on which Mrs. Hubpassed in reaching the buildings sit- bard's buildings stand is lot numuated on her land. That case was bered 4 on the sketch. She derived before us (Littlefield v. Hubbard, her title, not from the plaintiff, but 120 Me. 226, 113 Atl. 304), and it from the Kennebunkport Seashore was there held that the plaintiff Company. Her deed describes the owned the strip of land in fee sim- land conveyed to her as bounded ple, and whatever the defendant's thus: "Beginning at the southeastright of passage over the way, if erly corner of a lot of land heretoany, she had no right to build a con- fore conveyed by said grantor to C. crete walk thereon, or otherwise dis- Sewall Hubbard [in Littlefield v. turb the soil upon the fee of the Hubbard, supra, it was decided that plaintiff. Whether or not the de- this corner is at G) and on the westfendant had any right of passage erly side of the road leading to over the land was not determined in Lord's Point, so-called (said point that case. Since that case was de- not adjoining said road), thence cided, the defendant Hubbard and running southwesterly by said Sewher tenants, customers, and patrons, all Hubbard's land, 400 feet to an some of whom are defendants here- eyebolt in a ledge in the cove, soin, have continued to use this way, called, thence easterly in a straight on foot and with automobiles. The line about 400 feet to a point 3 feet instant case is a bill in equity asking distant from the west side of the for an injunction against such use. sewer manhole, thence around the

The defendants seek to justify manhole, about 6 feet to another their use on three grounds: First, point, thence northerly 52 feet, to because, as to the Hubbard land, the place of beginning.” this way is a way of necessity; sec- By a plan marked exhibit 9, which ond, because it is a way established the sitting justice had an opportuby dedication; third, because the nity to examine, but which is not public had gained a right of way by before us, the justice found it clearprescription. At page 228, of 120 ly to appear that lot numbered 4 is Me. (113 Atl. 304), reporting the not adjacent nor contiguous to the first above case, is to be found a 16-foot strip in question. He also sketch of the premises, which is found that said lot, at the time Mrs. hereby made part of this opinion, Hubbard bought it from the Seaand to which we shall refer.

shore Company, was a narrow strip The justice who heard the case of high land, dropping down with sustained the bill and ordered issu- a rocky slope to the sea, and that ance of the injunction prayed for, the westerly boundary of the lot is from which decree the defendants water. These being questions of appealed.

fact, his findings are conclusive,

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Easements way of neces

ocean.

since no testimony to the contrary long collection, including Kingsley appears. He also finds testimony in v. Gouldsborough, supra, the rule is the case that from the southeasterly made more restrictive by stating corner of Mrs. Hubbard's lot its that the way must be one of strict owner had access to the Lord's necessity, and that mere convenience Point road without passing over the is not sufficient. 21 R. C. L. 1214. 16-foot strip of land in question. See also Whitehouse v. Cummings, The testimony in the record sustains 83 Me. 91, 23 Am. St. Rep. 756, 21 all these findings.

Atl. 743, where it is distinctly statThe defendants in their argument ed as the rule of law in this state admit the long-established rule that, that a way of necessity must be one where land borders on the ocean, a of strict necessity, and not one of public highway, there exists no way mere convenience. of necessity even over a grantor's Since the defendant Hubbard, as

land, although such we have already said, obtained her

passage by water title from the Seashore Compa sity-grant may not be as con- and not from the plaintiff, it should bordering on venient as a passage

also be observed that every right of by land, since neces- way of necessity is

-way of necessity and not convenience is the test. founded on a pre- sity over stranHildreth v. Goggins, 91 Me. 227, 39 sumed grant, hence ser’, land. Atl. 550; Kingsley v. Gouldsborough none can be presumed over a stranLand Improv. Co. 86 Me. 279, 25 ger's land, and none can be thus acL.R.A. 502, 29 Atl. 1074.

quired. Whitehouse v. Cummings, But, while admitting this rule, supra, and many cases there cited. they now ask its abrogation or mod- Under all the circumstances we ification in this case because of the hold that the defendant cannot claim great inconvenience, as they claim, a right of way by necessity over the attendant upon the use of ocean ac

16-foot strip. cess to her premises. While all Way established by dedication.courts agree that there may, under

The defendants also urge that, by some circumstances, be a way by ne- virtue of the ownership by Mrs. cessity, they are not in complete Hubbard of lot numbered 4, they agreement as to just what necessity have a right to use the. 16-foot strip is required. The word "necessity," as a way dedicated to public use by as applied to a way by necessity, has the owner of the fee. been held not to mean that there Here we depart from private must exist an absolute physical im- rights, for dedication means an appossibility of otherwise reaching the propriation of land, alleged dominant estate. When a by its owner, for

Dedication

public use. way exists, but the expense to be in- public uses. Barcurred in utilizing it is grossly in teau v. West, 23 Wis. 416. There is excess of the total value of the es- no such thing as a dedication betate itself, an easement of necessity tween the owner and individuals. is sometimes recognized. Smith v. The public must be a party to every Griffin, 14 Colo. 429, 23 Pac. 905; dedication. Prescott v. Edwards, Pettingill v. Porter, 90 Mass. 1, 85 117 Cal. 298, 59 Am. St. Rep. 186, Am. Dec. 671.

49 Pac. 178. Our own court, in But convenience alone cannot give Northport Wesleyan Grove Campa right of way. Ann. Cas. 1913C, meeting Asso, v. Andrews, 104 Me.

1112, note to Buss- 342, 20 L.R.A. (N.S.) 976, 71 Atl. sity-conveni- meyer v. Jablonsky, 1027, has given the following defini

where may be found tion: “Dedication is the intentional a collection of cases sustaining this appropriation of land by the owner doctrine, from England, Canada,

England, Canada, to some proper public use, reserving and from thirty-two states in our to himself no rights therein inconUnion. In many decisions in that sistent with the full exercise and en

-way of neces

ence.

(- Me. 188 Atl. 285.) joyment of such use. The intention of way and the sea wall protectto dedicate is the essential principle, ing it was not cast upon the puband, whenever that intention on the lic; but Benjamin Watson and C. part of the owner of the soil exists Sewall Hubbard were specifically in fact and is clearly manifest, ei- charged therewith. There is no evither by his words or acts, the dedi- dence that the municipality ever accation, so far as he is concerned, is cepted the way.

cepted the way. There is no evimade. If accepted and used by the dence that the strip was ever plotted public for the purpose intended, it by the owner as a street upon any becomes complete, and the owner of plan. There was not a platting of

. the soil is precluded from asserting lots and the street, and a sale of the any ownership therein that is not lots by reference to the plan, as in entirely consistent with the use for Bartlett v. Bangor, 67 Me. 464. which it was dedicated.”

There was no representation of the The intent to dedicate is the es- platting by a plan, nor an exhibition sential element. Northport Wes- of the plan to the purchasers, nor leyan Grove Campmeeting Asso. v. the selling of lots by an express refAndrews, supra. The burden of erence to the plan as in Northport

proof rests Evidence-bar

upon Wesleyan Grove Campmeeting Asso. den of proof- him who claims ded- v. Andrews, 104 Me. 349, 20 L.R.A. dedication.

ication to show, by (N.S.) 976, 71 Atl. 1027." acts or declarations of the owner of We find no dedication of this 16the land, or by some other competent foot strip of land to public uses. testimony, a clear and unequivocal Right of way by prescription intention to dedicate to public use. gained by the public.—Here, again, Brown v. Dickey, 106 Me. 97, 75 we deal with public rights as a basis Atl. 382. Everything depends upon of any right which the defendants the intention of the party whose dedication is claimed, and upon the A highway may be proved by character of the permission given long-continued user. McCann v. and the use allowed. White v. Bangor, 58 Me. 348. Bradley, 66 Me. 254. This intention A road may be es- effect of user.

Highway must be unequivocally and satisfac- tablished by user. torily proved. Washburn, Ease- The rights of the public may be ments, 3d ed. p. 186.

more or less extensive according to In the findings of the justice be- the user shown. Hinks v. Hinks, 46 low he expressed aptly and in har. Me. 423. Ways may be established mony with the testimony in the rec- by proof of public user. Willey v. ord the exact situation, in the fol- Ellsworth, 64 Me. 57. But mere use lowing words: “The evidence does without the essen

-establishment not indicate an intention to dedicate tial characteristics

by user. this 16-foot strip to the public use. of nonpermissive On the other hand, it clearly dis- character is not sufficient to estabproves the existence of such an in- lish a way by user, and the open, tention on the part of the grantor. uninclosed character of the land and The right of way was originally cre- the fact of its trifling value, have a ated, according to the record, as a tendency to show merely permissive private right of way for the benefit use. Mayberry v. Standish, 56 Me. of Benjamin Watson and C. Sewall 350. In that case our court said: Hubbard. Its continued existence in “The open and uninclosed condition the same character is evident by of the land, a sandy, pitch pine, subsequent references in deed to blueberry plain of trifling value, was C. Sewall Hubbard of lot No. 3, a matter from which it might be and in deed of the common grant- presumed that the use was permisor to the plaintiff conveying the sive.” 16-foot strip itself. The burden In the case at bar it clearly apof keeping in repair this right pears that this tract of land, includ

may claim.

ing the 16-foot strip, was unin- cient evidence that such use of the closed seashore property, uncultivat land was adverse to the possession ed, largely barren, more or less used

or rights of the owner of the fee. by hunters and others for passage We hold that no way over the 16to and from the seashore; that fish

foot strip has been shown to be es ermen went to their boats over it;

tablished by public user. that seaweed from the shore was hauled over it; that

The appeal must be dismissed, -suficiency of user to estab- the public passed

with costs for plaintiff, and the deover it at will as oc- cree below be affirmed. casion demanded. There is no suffi- So ordered

lish.

ANNOTATION.

Easements: way by necessity where property is accessible by navigable water.

A way from necessity is an easement founded on an implied grant or reservation, and is an application of the principle that whenever one party conveys property, he also conveys whatever is necessary to the beneficial use of that property, and retains whatever is necessary for the beneficial use of the land kept. 21 R. C. L. 1214. All courts are agreed that under some circumstances there may be a way by necessity, but there is conflict as to what necessity is required; many courts lay down the rule that the necessity requisite to create a right of way must be absolute and indispensable, and all courts agree that mere inconvenience is not sufficient. 21 R. C. L. 1217. The present annotation does not, however, purport to discuss the general rules as to what must be shown to create a way by necessity, except so far as they are applied to the facts necessary to bring a case within the scope of the annotation.

Cases dealing with the precise question of whether an easement of a way by necessity exists where the land in favor of which the way is claimed borders on navigable water are comparatively few; they are, however, in accord in holding that where there is access to the property over navigable water, - a highway over

a which the property owner has a right to pass,—no way by necessity exists over contiguous lands, although a way by land may be more convenient; in other words, they apply the rule (see 21 R. C. L. 1214, supra) that con

venience alone will not create a way by necessity where the property is in fact accessible by another less convenient way which may be legally used.

Maine.—Kingsley v. Gouldsborough Land Improv. Co. (1894) 86 Me. 279, 25 L.R.A. 502, 29 Atl. 1074; Hildreth v. Googins (1898) 91 Me. 227, 39 Atl. 550; LITTLEFIELD v. HUBBARD (reported herewith) ante, 1306.

Massachusetts. Grammar School v. Jeffrey's Neck Pasture (1899) 174 Mass. 572, 55 N. E. 462.

New York. Bauman v. Wagner (1911) 146 App. Div. 191, 130 N. Y. Supp. 1016 (later appeal in (1920) 193 App. Div. 970, 184 N. Y. Supp. 907); Moore v. Day (1921) 199 App. Div. 76, 191 N. Y. Supp. 731, affirmed in (1923) 235 N. Y. 554, 139 N. E. 732. See al80 Burlew v. Hunter (1899) 41 App. Div. 152, 58 N. Y. Supp. 453; Staples v. Cornwall (1906) 114 App. Div. 596, 99 N. Y. Supp. 1009, affirmed without opinion in (1907) 190 N. Y. 506, 83 N. E. 1132.

Oregon.—Tucker v. Nuding (1919) 92 Or. 319, 180 Pac. 903.

South Carolina.-Lawton v. Rivers (1823) 13 S. C. L. (2 M'Cord) 445, 13 Am. Dec. 741; Turnbull V. Rivers (1825) 14 S. C. L (3 M'Cord) 131, 15 Am. Dec. 622.

Texas. See Anderson v. Engler (1916) Tex. Civ. App.

184 S. W. 309.

Canada.—Fitchett v. Mellow (1897) 29 Ont. Rep. 6.

Thus, where the land has navigable water on three sides of it, and it ap

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WAY OF NECESSITY-

cases

pears that the owner has erected intolerable burden upon the neighborwharves known to steamboats, which, ing land to hold that a way by neduring certain portions of the year, cessity existed over it; and that it run between the land and a near-by would be more reasonable to conclude port, the court in Kingsley v. Goulds- that the owner of the peninsula should borough Land Improv. Co. (Me.) suffer the inconvenience and loss insupra, held that, although it might cident to the natural conditions of his be more convenient to pass to and fro land, rather than to permit him to free the land by means of a highway over himself of that burden by throwing it the grantor's premises adjoining it upon his neighborhood. on the fourth side, no way of neces- So, one purchasing an island in a sity over the land existed, for the rea- navigable lake or other body of water son that inconvenience is not such has no right of way by necessity over that the law requires a constituted land of the grantor from the shore legal necessity for the way. And this to a public road, although the grantcase was followed in Hildreth v. Goog- or's land lies directly opposite the ins (1898) 91 Me. 227, 39 Atl. 550, island, if the grantee has another, alwhere it appears that one side of the though less convenient, access to the defendant's land bordered on the public road by water. Bauman v. ocean, but there was nothing to show Wagner (1911) 146 App. Div. 191, 130 that there was a wharf or other means N. Y. Supp. 1016 (later appeal in of approaching the land. These two (1920) 193 App. Div. 970, 184 N. Y.

are cited in the reported case Supp. 907); Moore v. Day (1921) 199 (LITTLEFIELD V. HUBBARD, ante, 1306) App. Div. 76, 191 N. Y. Supp. 731, afin support of its ruling that no way firmed without opinion in (1923) 235 by necessity exists over remaining N. Y. 554, 139 N. E. 732; Lawton v. land of the grantor where the land Rivers (1823) 13 S. C. L. (2 M'Cord) purchased borders on

the ocean, 445, 13 Am. Dec. 741. See also Turnthough passage by water is not as bull v. Rivers (1825) 14 S. C. L. (3 convenient as passage by land. M'Cord) 131, 15 Am. Dec. 622.

So, in Canada, no easement by ne- Thus, in Bauman v. Wagner (N. Y.) cessity is reserved to a peninsula or supra, the defendant's predecessor in neck of land jutting out into a bay title purchased an island located in which surrounds it on three sides, a navigable bay, opposite other land over a lot bounding it on the fourth owned by the grantor, and separated side where the peninsula is accessible from the grantor's land by a marsh or from the mainland in summer by boat swamp; the deed gave the grantee the and in winter by ice, although there right to use the swamp as a means of are certain times of the year when, ingress and egress to and from the because of low water, it is inaccessible island, but reserved no way over the in this manner. Fitchett v. Mellow

land of the grantor bordering on the (1897) 29 Ont. Rep. 6. The court

swamp and bay, and it appeared that said: “The defendants' land is sur

the grantee had in mind at the time rounded on all sides but one by a

using the island as a summer resort, highway,--that highway consisting, it

to be patronized by people transportis true, of the waters of the bay,—but

ed to it by steamers or boats; and the I am unable to see why the means of

court held that, after a lapse of thiraccess afforded by such a highway should not be held to prevent the

ty years, the defendant was not en

titled to claim of way by necessity claim to a way of necessity arising

over the land of his predecessor just as much as if the highway were upon dry land." The court said, fur

grantor, inasmuch as it appeared that ther, that considering the conditions

highways extended to the shores of in Canada, where there are number- the bay at other points, and were less cases of persons owning land cut readily accessible by boats and steamoff from other land by a lake or pond, ers from the island. except on one side, it would place an Similarly, where plaintiff pur

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