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(- Me. - 128 Atl. 285.).
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. August, 1919, the plaintiff herein brought suit against this defendant, Elvira A. Hubbard, for trespass in entering upon this land and building a concrete walk thereon, over which she, and her customers and patrons, passed in reaching the buildings situated on her land. That case was before us (Littlefield v. Hubbard, 120 Me. 226, 113 Atl. 304), and it was there held that the plaintiff owned the strip of land in fee simple, and whatever the defendant's right of passage over the way, if any, she had no right to build a concrete walk thereon, or otherwise disturb the soil upon the fee of the plaintiff. Whether or not the defendant had any right of passage over the land was not determined in that case. Since that case was decided, the defendant Hubbard and her tenants, customers, and patrons, some of whom are defendants herein, have continued to use this way, on foot and with automobiles. The instant case is a bill in equity asking for an injunction against such use.
The defendants seek to justify their use on three grounds: First, because, as to the Hubbard land, this way is a way of necessity; second, because it is a way established by dedication; third, because the public had gained a right of way by prescription. At page 228, of 120 Me. (113 Atl. 304), reporting the first above case, is to be found a sketch of the premises, which is hereby made part of this opinion, and to which we shall refer.
The justice who heard the case sustained the bill and ordered issuance of the injunction prayed for, from which decree the defendants appealed.
LITTLEFIELO, JAN. 6, 1905 FISH HOUSE LOTS EX DARD YO WAY SON, PES 26, 1900. Ex. 2 Ex 3 DESO o C SEWALL HUBBard, Dec. 2, 1995 EX DEGO TOC SEWALL HUBBARD, JERES, EX.5 DEED TO ELVIRA HUBBARD, SEPT 12,
LOT NO! LOT No2 LOT HES LOT NO
Ex.6 DERD PK, LD, THE RIGHT OF WAY
Right of way because of necessity. The land on which Mrs. Hubbard's buildings stand is lot numbered 4 on the sketch. She derived her title, not from the plaintiff, but from the Kennebunkport Seashore Company. Her deed describes the land conveyed to her as bounded thus: "Beginning at the southeasterly corner of a lot of land heretofore conveyed by said grantor to C. Sewall Hubbard [in Littlefield v. Hubbard, supra, it was decided that this corner is at G] and on the westerly side of the road leading to Lord's Point, so-called (said point not adjoining said road), thence running southwesterly by said Sewall Hubbard's land, 400 feet to an eyebolt in a ledge in the cove, socalled, thence easterly in a straight line about 400 feet to a point 3 feet distant from the west side of the sewer manhole, thence around the manhole, about 6 feet to another point, thence northerly 52 feet, to the place of beginning."
By a plan marked exhibit 9, which the sitting justice had an opportunity to examine, but which is not before us, the justice found it clearly to appear that lot numbered 4 is not adjacent nor contiguous to the 16-foot strip in question. He also found that said lot, at the time Mrs. Hubbard bought it from the Seashore Company, was a narrow strip of high land, dropping down with a rocky slope to the sea, and that the westerly boundary of the lot is water. These being questions of fact, his findings are conclusive,
since no testimony to the contrary appears. He also finds testimony in the case that from the southeasterly corner of Mrs. Hubbard's lot its owner had access to the Lord's Point road without passing over the 16-foot strip of land in question. The testimony in the record sustains all these findings.
Easementsway of necessity-grant bordering on
The defendants in their argument admit the long-established rule that, where land borders on the ocean, a public highway, there exists no way of necessity even over a grantor's land, although such passage by water may not be as convenient as a passage by land, since necessity and not convenience is the test. Hildreth v. Goggins, 91 Me. 227, 39 Atl. 550; Kingsley v. Gouldsborough Land Improv. Co. 86 Me. 279, 25 L.R.A. 502, 29 Atl. 1074.
But, while admitting this rule, they now ask its abrogation or modification in this case because of the great inconvenience, as they claim, attendant upon the use of ocean access to her premises. While all courts agree that there may, under some circumstances, be a way by necessity, they are not in complete agreement as to just what necessity is required. The word "necessity," as applied to a way by necessity, has been held not to mean that there must exist an absolute physical impossibility of otherwise reaching the alleged dominant estate. When a way exists, but the expense to be incurred in utilizing it is grossly in excess of the total value of the estate itself, an easement of necessity is sometimes recognized. Smith v. Griffin, 14 Colo. 429, 23 Pac. 905; Pettingill v. Porter, 90 Mass. 1, 85 Am. Dec. 671.
But convenience alone cannot give a right of way. Ann. Cas. 1913C, 1112, note to Bussmeyer v. Jablonsky, where may be found
-way of necessity-conveni
a collection of cases sustaining this doctrine, from England, Canada, and from thirty-two states in our Union. In many decisions in that
long collection, including Kingsley v. Gouldsborough, supra, the rule is made more restrictive by stating that the way must be one of strict necessity, and that mere convenience is not sufficient. 21 R. C. L. 1214. See also Whitehouse v. Cummings, 83 Me. 91, 23 Am. St. Rep. 756, 21 Atl. 743, where it is distinctly stated as the rule of law in this state that a way of necessity must be one of strict necessity, and not one of mere convenience.
Since the defendant Hubbard, as we have already said, obtained her title from the Seashore Company, and not from the plaintiff, it should also be observed that every right of way of necessity is -way of necesfounded on a pre- sity over stran sumed grant, hence ger's land. none can be presumed over a stranger's land, and none can be thus acquired. Whitehouse v. Cummings, supra, and many cases there cited.
Under all the circumstances we hold that the defendant cannot claim a right of way by necessity over the 16-foot strip.
Way established by dedication.The defendants also urge that, by virtue of the ownership by Mrs. Hubbard of lot numbered 4, they have a right to use the. 16-foot strip as a way dedicated to public use by the owner of the fee.
Here we depart from private rights, for dedication means an appropriation of land, by its owner, for public uses. Barteau v. West, 23 Wis. 416. There is no such thing as a dedication between the owner and individuals. The public must be a party to every dedication. Prescott v. Edwards, 117 Cal. 298, 59 Am. St. Rep. 186. 49 Pac. 178. Our own court, in Northport Wesleyan Grove Campmeeting Asso. v. Andrews, 104 Me. 342, 20 L.R.A. (N.S.) 976, 71 Atl. 1027, has given the following definition: "Dedication is the intentional appropriation of land by the owner to some proper public use, reserving to himself no rights therein inconsistent with the full exercise and en
(— Me. —, 128 Atl. 285.)
joyment of such use. The intention to dedicate is the essential principle, and, whenever that intention on the part of the owner of the soil exists in fact and is clearly manifest, either by his words or acts, the dedication, so far as he is concerned, is made. If accepted and used by the public for the purpose intended, it becomes complete, and the owner of the soil is precluded from asserting any ownership therein that is not entirely consistent with the use for which it was dedicated."
The intent to dedicate is the essential element. Northport Wesleyan Grove Campmeeting Asso. v. Andrews, supra. The burden of proof rests
den of proof- him who claims deddedication. ication to show, by acts or declarations of the owner of the land, or by some other competent testimony, a clear and unequivocal intention to dedicate to public use. Brown v. Dickey, 106 Me. 97, 75 Atl. 382. Everything depends upon the intention of the party whose dedication is claimed, and upon the character of the permission given and the use allowed. White v. Bradley, 66 Me. 254. This intention must be unequivocally and satisfactorily proved. Washburn, Easements, 3d ed. p. 186.
In the findings of the justice below he expressed aptly and in harmony with the testimony in the record the exact situation, in the following words: "The evidence does not indicate an intention to dedicate this 16-foot strip to the public use. On the other hand, it clearly disproves the existence of such an intention on the part of the grantor. The right of way was originally created, according to the record, as a private right of way for the benefit of Benjamin Watson and C. Sewall Hubbard. Its continued existence in the same character is evident by subsequent references in deed to C. Sewall Hubbard of lot No. 3, and in deed of the common grantor to the plaintiff conveying the 16-foot strip itself. The burden of keeping in repair this right repair this right
of way and the sea wall protecting it was not cast upon the public; but Benjamin Watson and C. Sewall Hubbard were specifically charged therewith. There is no evidence that the municipality ever accepted the way. cepted the way. There is no evidence that the strip was ever plotted by the owner as a street upon any plan. There was not a platting of lots and the street, and a sale of the lots by reference to the plan, as in Bartlett v. Bangor, 67 Me. 464. There was no representation of the platting by a plan, nor an exhibition of the plan to the purchasers, nor the selling of lots by an express reference to the plan as in Northport Wesleyan Grove Campmeeting Asso. v. Andrews, 104 Me. 349, 20 L.R.A. (N.S.) 976, 71 Atl. 1027."
We find no dedication of this 16foot strip of land to public uses.
Right of way by prescription gained by the public.-Here, again, we deal with public rights as a basis of any right which the defendants may claim.
A highway may be proved by long-continued user. McCann v. Bangor, 58 Me. 348.
A road may be es- effect of user. tablished by user.
The rights of the public may be more or less extensive according to the user shown. Hinks v. Hinks, 46 Me. 423. Ways may be established by proof of public user. Willey v. Ellsworth, 64 Me. 57. But mere use without the essential characteristics establishment of nonpermissive character is not sufficient to establish a way by user, and the open, uninclosed character of the land and the fact of its trifling value, have a tendency to show merely permissive use. Mayberry v. Standish, 56 Me. 350. In that case our court said: "The open and uninclosed condition of the land, a sandy, pitch pine, blueberry plain of trifling value, was a matter from which it might be presumed that the use was permissive."
In the case at bar it clearly appears that this tract of land, includ
ing the 16-foot strip, was uninclosed seashore property, uncultivated, largely barren, more or less used by hunters and others for passage to and from the seashore; that fishermen went to their boats over it; that seaweed from the shore was hauled over it; that the public passed over it at will as oc
-sufficiency of user to establish.
casion demanded. There is no suffi
cient evidence that such use of the land was adverse to the possession or rights of the owner of the fee. We hold that no way over the 16foot strip has been shown to be established by public user.
The appeal must be dismissed, with costs for plaintiff, and the decree below be affirmed. So ordered.
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 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 also 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.
pears that the owner has erected wharves known to steamboats, which, during certain portions of the year, run between the land and a near-by port, the court in Kingsley v. Gouldsborough Land Improv. Co. (Me.) supra, held that, although it might be more convenient to pass to and fro the land by means of a highway over the grantor's premises adjoining it on the fourth side, no way of necessity over the land existed, for the reason that inconvenience is not such that the law requires a constituted legal necessity for the way. And this case was followed in Hildreth v. Googins (1898) 91 Me. 227, 39 Atl. 550, where it appears that one side of the defendant's land bordered on the ocean, but there was nothing to show that there was a wharf or other means of approaching the land. These two cases are cited in the reported case (LITTLEFIELD V. HUBBARD, ante, 1306) in support of its ruling that no way by necessity exists over remaining land of the grantor where the land purchased borders on the ocean, though passage by water is not as convenient as passage by land.
So, in Canada, no easement by necessity is reserved to a peninsula or neck of land jutting out into a bay which surrounds it on three sides, over a lot bounding it on the fourth side where the peninsula is accessible from the mainland in summer by boat and in winter by ice, although there are certain times of the year when, because of low water, it is inaccessible in this manner. Fitchett v. Mellow (1897) 29 Ont. Rep. 6. The court said: "The defendants' land is surrounded on all sides but one by a highway, that highway consisting, it is true, of the waters of the bay,—but I am unable to see why the means of access afforded by such a highway should not be held to prevent the claim to a way of necessity arising just as much as if the highway were upon dry land." The court said, further, that considering the conditions in Canada, where there are numberless cases of persons owning land cut off from other land by a lake or pond, except on one side, it would place an
intolerable burden upon the neighboring land to hold that a way by necessity existed over it; and that it would be more reasonable to conclude that the owner of the peninsula should suffer the inconvenience and loss incident to the natural conditions of his land, rather than to permit him to free himself of that burden by throwing it upon his neighborhood.
So, one purchasing an island in a navigable lake or other body of water has no right of way by necessity over land of the grantor from the shore to a public road, although the grantor's land lies directly opposite the island, if the grantee has another, although less convenient, access to the public road by water. 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 without opinion in (1923) 235 N. Y. 554, 139 N. E. 732; Lawton v. Rivers (1823) 13 S. C. L. (2 M'Cord) 445, 13 Am. Dec. 741. See also Turnbull v. Rivers (1825) 14 S. C. L. (3 M'Cord) 131, 15 Am. Dec. 622.
Thus, in Bauman v. Wagner (N. Y.) supra, the defendant's predecessor in title purchased an island located in a navigable bay, opposite other land owned by the grantor, and separated from the grantor's land by a marsh or swamp; the deed gave the grantee the right to use the swamp as a means of ingress and egress to and from the island, but reserved no way over the land of the grantor bordering on the swamp and bay, and it appeared that the grantee had in mind at the time using the island as a summer resort, to be patronized by people transported to it by steamers or boats; and the court held that, after a lapse of thirty years, the defendant was not entitled to claim of way by necessity over the land of his predecessor grantor, inasmuch as it appeared that highways extended to the shores of the bay at other points, and were readily accessible by boats and steamers from the island.