Opinion
No. 4900.
Argued May 2, 1961.
Decided May 31, 1961.
1. In construing the language used in a deed it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances.
2. Where the grantors at the time of their conveyance of certain lands to the plaintiff reserved a right of way over a driveway thereon which was used with plaintiff's knowledge to reach a garage upon their remaining land, it was held that the reserved right of way was an appurtenance to their remaining land.
PETITION, by Florence D. Sanborn to enjoin the defendants, Lucien S. and Grace R. Keroack, and others in their right from using a driveway on the west side of plaintiff's premises to reach land of the defendants obtained in a conveyance from Gertrude M. Landry.
Prior to November 5, 1940 Mary Josephine Wiley and Lillian H. Dow owned certain premises situated on the east side of Main Street and the south side of Pine Street in Laconia. By subsequent conveyances they became the Sanborn, Keroack and Landry properties.
On November 5, 1940, Wiley and Dow conveyed a portion of said premises to Howard F. and Dorothea R. Conly described as follows: "A certain tract of land with the buildings thereon situated in said Laconia on the easterly side of Main Street and the southerly side of Pine Street, and running easterly on said Pine Street to a driveway owned by said Wiley; thence southerly on land of said Wiley to another driveway running to said Main Street and owned by said Wiley; thence westerly on said last mentioned driveway to Main Street; thence on Main Street to the point of beginning . . . Said grantees, their heirs and assigns, are to have the right to use in common with others the above-mentioned driveways from Pine Street and from Main Street to the rear of the lot herein conveyed; said driveways being the property of said grantor Wiley. The two-stall garage now located on property of the said Wiley and belonging to said grantor Dow is hereby conveyed to these grantees. The land on which said garage is located is to be leased by the said Wiley to these grantees."
On April 17, 1941 these premises, together with said garage, were conveyed by the Conlys to the Keroacks in accordance with a description in a new deed given to the Conlys by Wiley and Dow on that date "for the sole purpose of correcting any defects which might have existed" in the prior deed. The deed from the Conlys to the Keroacks contained the following: "The said grantors also hereby convey to the said grantees, their heirs and assigns, all such rights to the use in common with others of the driveways on the easterly and southerly sides of the above-described premises extending to Pine Street and to Main Street, as were conveyed to the said grantors by Mary Josephine Wiley and Lillian H. Dow."
On September 12, 1942 Wiley and Dow conveyed to the plaintiff, Florence D. Sanborn, a parcel of land on the south side of Pine Street adjoining the Keroack property on the east. This deed contained the following: "This conveyance is made subject to a right of way over the driveway which runs on the west side of the above described property."
On July 10, 1946 Wiley and Dow conveyed the balance of their tract to Gertrude M. Landry. This conveyance was made "together with whatever right of way over and across said Sanborn land may be appurtenant to the above-described premises."
On December 27, 1957 said Landry conveyed to the Keroacks the easterly end of the above premises on which the two-stall garage previously mentioned had been located. This deed contained the following: "And for the same consideration there is also conveyed herewith such right of way over and across land now or formerly of Florence D. Sanborn as may be appurtenant to the within described premises."
After hearing, the Trial Court (Sullivan, J.) ruled that the right of way created in the: deed from Wiley and Dow to the plaintiff over the westerly side of her land benefited the remaining land of the grantors. Also that the right of way created in the deed of Wiley and Dow to Gertrude: M. Landry "established an easement over the westerly side of said Sanborn land as it is appurtenant to the premises conveyed to said Gertrude M. Landry." Lastly the Court ruled that the defendants succeeded to the right of way over the westerly side of the Sanborn land by virtue of the Landry and Conly deeds to them and denied plaintiff's petition for an injunction.
Plaintiff's bill of exceptions to the Trial Court's findings, rulings and decree and to the denial of her motion to set aside the decree was allowed and transferred.
Harold E. Wescott and Peter V. Millham (Mr. Millham orally), for the plaintiff.
Normandin and Normandin (Mr. F. A. Normandin orally), for the defendants.
The main issue to be decided is whether the defendants have a right to use the driveway on the westerly side of plaintiff's premises to reach the property which they acquired from Gertrude M. Landry.
The parties are in agreement that the Keroacks have the right to use this driveway to reach their property at the corner of Main and Pine Streets by virtue of a grant of the use thereof in the deed from Wiley and Dow to the Conlys dated November 5, 1940 to which the Keroacks succeeded on April 17, 1941. The language of this grant was the following: "Said grantees, their heirs and assigns, are to have the right to use in common with others the above-mentioned driveways from Pine Street and from Main Street to the rear of the lot herein conveyed; said driveways being the property of said grantor Wiley."
On September 12, 1942, Wiley and Dow conveyed to plaintiff Sanborn the premises over the westerly side of which the driveway Pine Street is situated. This conveyance was made "Subject right of way over the driveway which runs on the west side of the above described property." She maintains that this language was intended to make her property subject only to the right of way previously granted to the Conlys and by them to the defendants which is appurtenant to the premises at the corner of Main and Pine Streets and that the wording "subject to a right of way" so indicates. She also maintains that there was no need of a right of way from Pine Street to the remaining land of Wiley and Dow because there was sufficient access to it from Main Street. She further argues that Wiley and Dow had some doubt they had such a right of way because in the deed of their remaining tract to Landry they used the words "together with whatever right of way over and across said Sanborn land may be appurtenant to the above-described premises."
In construing the language used in a deed "it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances." North Hampton District v. Society, 97 N.H. 219, 220.
When Wiley and Dow conveyed to the plaintiff there was a two-stall garage on part of their remaining property. In their prior conveyance to the Conlys, the grantors referred to this garage as follows: "The two-stall garage now located on property of said Wiley and belonging to said grantor Dow is hereby conveyed to these grantees. The land on which said garage is located is to be leased by the said Wiley to these grantees." A five-year lease was executed the same day, viz. November 5, 1940, and on April 17, 1941 the Conlys conveyed this garage and assigned this lease to the defendants when they conveyed the corner property to them.
The garage faced toward Pine Street. The husband of Gertrude M. Landry to whom Wiley and Dow conveyed their remaining land in 1946 on part of which the garage was located, testified that when he lived on the premises, from 1946 to March 1958, "If I came off of Pine Street, which I did a lot of times . . . I cut right in from Pine Street to the Sanborn driveway . . . which I had a right to use." He also testified that he made use of that driveway whenever it suited his purposes and that when the property was bought the Wileys pointed out the boundaries to him and they walked over the driveway on the Sanborn premises.
Defendant Lucien Keroack testified that from 1941 when they purchased the corner property and the garage in question, he and whatever tenant rented the other stall would get to the garage mostly through Pine Street. The reason being that "in order to come in from Main Street there was an awful lot of finagling to do in order to get in there. Coming in on the Main Street you couldn't very well do it, especially on a winter day when there was snow piled up around there. You couldn't very well get in."
As owner and lessor of the land on which this garage was located when the conveyance to the plaintiff was made the grantor Wiley had a reason to preserve this easier mode of access. From having lived in the immediate vicinity since 1915, the plaintiff could be found to have known that the driveway over the land she was purchasing was being used to reach the two-stall garage on the grantor's remaining land. McCleary v. Lourie, 80 N.H. 389. The use by the grantors of the words "a right of way" did not necessarily limit it to the Conly "right to use in common with others" the driveway from Pine Street. On this evidence the Trial Court could properly find and rule that in their conveyance to the plaintiff, the grantors reserved a right of way over the driveway from Pine Street to reach their remaining land. Sakansky v. Wein, 86 N.H. 337, 339.
This right was conveyed to Gertrude M. Landry in 1946 when Wiley and Dow deeded her their remaining premises "together with whatever right of way over and across said Sanborn land may be appurtenant to the above-described premises." By deed of Landry in 1957 the defendants obtained a right of way over the plaintiff's land to reach that part of the premises on which the two-stall garage was formerly located. II American Law of Property, s. 8.74; Restatement, Property, s. 488.
Petition denied.
All concurred.