Opinion
Decided March 2, 1937.
A right of way arises by estoppel in favor of an adjoining owner, B, of the grantor, A, where A's conveyance to C reserves such right of way in B's favor and A before making conveyance had at C's request purchased other land from B subject to the same easement in favor of B and thereupon A conveyed both tracts to C making reservation of the easement as to both. This estoppel in favor of the adjoining owner, B, inures to the grantees of B against C, the purchaser from A, and against C's successors in title. A general finding includes all special facts necessary to sustain it except those inconsistent with the special findings.
BILL IN EQUITY, brought by the plaintiff for the purpose of determining the defendant's right to make use of a cart road which extends along the entire westerly side of the plaintiff's land. A master found and reported the facts and recommended "judgment for defendant." The court, Burque, J., approved the findings of the master, gave judgment according to his recommendation, and allowed the plaintiff's bill of exceptions thereto.
The plaintiff owns a tract of land adjoining that of the defendant on the south and east. Both tracts are bounded on the south by a public highway, and the cart road, rights to which are here in dispute, runs northerly from that highway to the land of the defendant. It was in existence when both tracts were in common ownership and has continued in existence ever since that time.
The plaintiff derived her title by deed from one Wallace H. Baird, and he by deed from one Hawkes. Hawkes derived title by deed from Albert H. Caldwell, who derived his title to the tract in two separate parcels by two separate conveyances made at different times. Both of these conveyances were from the same grantors who then owned in common the premises on the west and north, title to which is now in the defendant.
The parcel first conveyed to Caldwell, known as lot No. 1, is a rectangular tract which now comprises the southwesterly corner of the plaintiff's premises. It was conveyed at that time without any reservation of the right of way over the cart road along its westerly side. Lot No. 2, subsequently conveyed to Caldwell, lies north and east of lot No. 1, the westerly bound thereof being an extension of the westerly line of lot No. 1. This second tract was conveyed with a reservation of a right of way over the cart road along its westerly side in favor of the grantors who then still owned the property adjoining on that side.
Caldwell, combining both lots No. 1 and No. 2 in a single description, conveyed to Hawkes reserving a right of way along the entire westerly side of the combined tract, that is, over that side of both lots No. 1 and No. 2, in the following language: "Said grantor reserves a right of way over said premises for the use of the owners of adjoining properties laying north and west of said premises; said right of way being a cart road extending along the entire west side of said property." Caldwell did not then, and never has, owned the land "laying North and West" of the plaintiff's property.
Hawkes, when bargaining with Caldwell for Lot No. 1, learned that it would be conveyed only subject to the right of the owners of land to the west and north to use the cart road. Hawkes refused to take the property subject to the easement unless Caldwell should procure five acres more from the owners to the north and west and convey them to her. Consequently Caldwell purchased lot No. 2 from the defendant's predecessors in title, who in their deed to Caldwell reserved the right of way. On the next day after thus acquiring title to lot No. 2, Caldwell deeded both lots to Hawkes, reserving the cart road in favor of the owners of land lying west and north of the lots.
The same description and reservation was repeated in the subsequent deeds of Hawkes to Wallace H. Baird and of Wallace H. Baird to the plaintiff.
About ten years after the plaintiff acquired her title, the defendant purchased the land lying to the north and west, which formerly belonged to Caldwell's grantors, and she now claims a right of way for the whole distance along the westerly side of the plaintiff's land, that is, over that side of both lots No. 1 and No. 2. There is no mention of any right of way as appurtenant to the defendant's land in her chain of title.
C. Bradley Frost, for the plaintiff.
Harry P. Greeley, for the defendant.
It is unnecessary to dispose of the case upon the theory that the defendant's rights in the cart road depend solely upon the reservation contained in the deed from Caldwell to Hawkes. The defendant's predecessors in title were not parties to that deed, and there would be difficulty in implying the grant of an easement from Hawkes to strangers to that deed if no more than that deed were to be considered.
The master's general finding, that the reservation in the deed covers both lots and that the defendant has an easement in the cart road, is sustainable upon another theory. A general finding includes all special facts necessary to sustain it unless there are special findings that indicate the contrary. Spaulding v. Mayo, 81 N.H. 85, 86; Eleftherion v. Company, 84 N.H. 32, 35. From the master's findings certain inferences could fairly be made which are not negatived by any special finding.
These inferences of fact are as follows: Caldwell bought lot No. 2 for Hawkes at her special request. He was merely a conduit for the passing of title from the defendant's predecessors in title to Hawkes. Hawkes was a party to the transaction of Caldwell with those who were using the cart road over lot No. 1 and who wished to continue its use. She knew that lot No. 1 would not be deeded to her by Caldwell except subject to the reservation of the right to such use. She consented to the reservation provided Caldwell should procure lot No. 2 for her. She and Caldwell both intended that the reservation should be made, and the grantors of lot No. 2 knew of their intention and that Hawkes had conditioned her consent to the easement upon her acquiring from them, through Caldwell, title to lot No. 2.
As a result of the passing of title in the manner mentioned, the parties all intended that the defendant's predecessors in title and their heirs should have the easement. Whatever the difficulty of effectuating that intention on the theory of an implied grant by Hawkes to them in sole consequence of the deed from Caldwell to Hawkes, to which they were technically not parties, the actual relationship and intent of all the parties, including the deeding of lot No. 2 to Hawkes' grantor at her request and in reliance upon her expressed intent to take both lots subject to the cart way resulted in Hawkes being equitably estopped to deny the easement that she admitted as an inducement for action by the predecessors in title of the defendant. Hawkes' successors in title, including the plaintiff, have all taken title by deeds giving them notice of the reservation. The estoppel, therefore, runs against the plaintiff. Graves v. Rogers, 59 N.H. 452.
A variation of the argument enforces the result. The defendant's predecessors in title in effect agreed with Caldwell, who was the go-between for Hawkes, to deed lot No. 2, with the reservation of a right of way, provided Caldwell or Hawkes would give them a right of way over lot No. 1. Caldwell attempted to deed the way over lot No. 1 by the reservation in his deed to Hawkes. Whether the intent of the parties could be effectuated by that reservation, need not be decided. If it could not be, Hawkes received more than she bargained for. In any event, her successors in title may not equitably claim freedom from the easement over lot No. 1, subject to which each of them bargained for the land. If there were a mutual mistake as to the means to be chosen for effectuating the intention of Caldwell, Hawkes and the defendant's predecessors in title, the deed would be as properly reformable in equity as if the parties had mistakenly described the premises.
If the defendant should file a counter-petition seeking an order that the plaintiff convey the right of way to the defendant, to the end that a marketable title be secured, the petition ought to be granted.
Exception overruled.
BRANCH and WOODBURY, JJ., concurred in the result: the others concurred.