Opinion
02-29-1888
EWERT v. BURTIS.
S. M. Schanck, for complainant. J. K. Gaskill, for defendant.
Motion for a preliminary injunction.
S. M. Schanck, for complainant. J. K. Gaskill, for defendant.
BIRD, V. C. The complainant in this case claims a right of way of necessity over the lands of the defendant, and files his bill asking the aid of the court by way of injunction. The defendant's testator owned a tract of land upon one side of which was a public highway, and across which ran a railroad. There was also another highway in another direction, but adjoining the defendant's land. From the highway first mentioned was and is a lane running to the house of the defendant, from which lane to the lands of the complainant is about 180 yards. To reach the lands of the complainant from this lane it is necessary to cross the said railroad. About 17 years ago, and after the said railroad was constructed, one Charles Robbins purchased of the defendant's testatrix the tract of land now owned by the complainant. The bill alleges that Robbins went into possession, and that he had no way of access to the public road, except across the other lands of his grantor to the said lane, and thence along said lane to the public highway first mentioned, and that for some time he used the lands of his grantor and the said lane for that purpose. The bill further states that after a time the said Robbins used the lands of the said railroad, which adjoined the said Robbins tract, for the purpose of reaching the highway secondly above mentioned; and that said Robbins and his immediate grantee, who was the grantor of the complainant, continued to use the lands of the said railroad company until a very recent period. The bill states that recently the railroad company has forbidden the use of their lands for any such purpose by the complainant. In consequence of this, the complainant says that he is entitled to a way, by necessity, over the lands of the defendant, who is the devisee under the last will and testament of the grantor of said Robbins.
On the presentation of this bill, properly verified, an order to show cause was allowed. The answer with affidavits is now before me, and the question is whether at this stage the court would be justified in attempting to aid the complainant by injunction. The defendant, in his answer, says that at the time of the conveyance to Robbins he was living upon the land in question as tenant of his mother, then the owner of the fee, and that the negotiations for the sale of the said lot of land to Robbins were all carried on by or through him. He says that his mother positively refused to make any conveyance of said land, because, if she did so, Robbins would necessarily have a right of way over the balance of her lands. This she would not consent to, and he so informed Robbins. He says that Robbins at once forgave any such right, in case he should buy, and declared that there was no necessity for it, because he could have a right of way over the railroad company's lands to the highway secondly above mentioned, and that one of the officers of the road had promised him that right in case he should buy. It appears that Robbins was then in the employ of the said railroad company. With these facts and this understanding a sale was effected, the deed delivered to Robbins, and he went into possession. The answer further sets up that Robbins at once used the said company's lands for the purpose of ingress and egress to his land, and continued to do so all the while, except for a very short period, when a bridge over a small stream had washed away; and that during that period, by the consent of Mrs. Burtis, he drove a few times over her lands. These statements are all sustained by very clearest affirmations in the affidavits annexed to the answer.
The complainant, in answer, by way of argument to this defense, plants himself upon what he calls his legal rights, and says that under the law he is entitled to a right of way by necessity. He claims that having executed that deed to Robbins, when Robbins accepted it the right of way by necessity inevitably passed as an incident, and that no part of the negotiations which was not embodied in the deed itself can be set up to defeat the legal operation of the transfer when the location of the land conveyed to complainant with respect to the defendant's land is first presented to the court. In other words, parol testimony cannot be admitted to defeat a solemn conveyance of real estate, nor any of the legal results flowing from such conveyance. The title to that easement,—the right of way by necessity,—passed with the grant itself, and became a part and parcel thereof; and it can only be released, the complainant says, by an instrument in writing, and executed with all the solemnities necessary to pass title to real estate.
Now, I am not at all prepared, at this stage of the case, to say that the complainant is right in this contention. It does not strike me with very much favor, at present, that it is equitable for a grantee by means of such devices to acquire title to valuable real estate for a certain consideration, and afterwards to claim rights and privileges which amount to very great burdens upon his grantor, which he had expressly abjured or renounced in order to secure such conveyance; and while the doubt in my mind is so serious, and the consequences to the grantor so burdensome, I think it plainly to be my duty not to advise that the order to show cause should be made absolute at this stage of the proceeding. Therefore I have no hesitation in denying the preliminary injunction.