Our discussion of future interests introduced us to the ways that people can share property over time and the problems that tend to arise when they do so. The materials on co-ownership showed ways that people can actually own property together at the same time. We now come to another kind of shared, concurrent interest in land.
Servitudes are interests in the lands of others that confer the power to use another’s land or to control what a landowner does with his land. Though courts and commentators have used a variety of words and modifiers to describe servitudes, they can be boiled down to two basic types: easements and covenants. At bottom, these are just contracts. One party promises to allow access to her land or that she will do or not do something on her own land, and the other party promises something in return.
What distinguishes easements and covenants from other contracts is that they can be made to bind not just the parties who agree to them but also the people who later acquire the lands these agreements burden and benefit. For example, assume two people come to an agreement that would let one of them drive over the property of the other. After a number of years, both parties have sold these lands. This easement, assuming a few conditions were met, will bind the new owners, even though these new owners were not parties to the original agreement and did not come to any new agreement among themselves.
The binding of future owners to an agreement struck by their predecessors is described as an easement’s or covenant’s running with the land. But for this feature, easements and covenants would be governed by more ordinary contract principles. While some of the historical cruft that has accumulated around these interests in land may still have arisen – after all, this is land we’re talking about – it likely would have been jettisoned far sooner. Now, however, the Third Restatement is making a concerted and explicit effort to clean up the doctrine of servitudes and to replace as much of it as possible with ordinary contract law, too much of it according to some critics.
Some sort of clean-up was plainly necessary. In fact, this area of law has been described as “an unspeakable quagmire” of silly and useless distinctions. This is at once unsurprising, given the historical development of the area, and surprising, given the simplicity of the underlying ideas.
Simply put, an easement is the right to use the land of another. A covenant is an obligation to do something or to refrain from doing something on one’s own land. Repeat those sentences to yourself a few times. As always, keeping in mind key examples makes things much easier.
Examples of easements: a trail across A’s property that connects B’s property to a lake; a driveway across A’s property that B uses to get from his property to a public road; the right of the utility company, B, to string wires on poles across a strip of A’s property.
Examples of covenants: a promise by A to B that A will not make commercial use of his property; a promise that A will not build a second story; a promise that A will only build additions that meet with the approval of a homeowner association’s architectural review committee; a promise that A will maintain a wall that separates his property from B’s.
It is worth re-emphasizing that easements and covenants are really just particular kinds of contracts (or perhaps gifts). Though they are often distinguished as being “property rights” rather than “contractual,” this distinction does not mean much. Rather than thinking about these obligations as completely different from ordinary contracts, it is more useful to concentrate on the doctrine specific to these kinds of contracts, in particular the practical and policy problems posed by contracts that run with the land.
Remember that an easement is the right to use the land of another. When you go to a friend’s house for dinner, you are using their land. But you do not have a right to do so. Rather, you are there by the permission of your host. Such permission to use the land of another is called a license.
What’s the difference between a license and an easement? Well, plainly, it comes down to the difference between permission to use land and a right to use land. Permission can be granted and revoked at will. A right to use land, however, is irrevocable. Once A grants an easement, A cannot change his or her mind and end the arrangement unilaterally. If A invites you over for dinner, granting you a license, A can revoke the offer at anytime, and kick you off the property.
This is not to say that easements are necessarily permanent. Irrevocable does not mean the easement lasts forever. By its own terms, the easement may expire after one year, one day, when a certain event happens, or otherwise. The key is that the grantor cannot unilaterally rescind the grant. There are a few instances in which licenses are deemed irrevocable, and thus essentially converted into easements by the court. We will study a few of them.
Being interests in land, easements are subject to the statute of frauds, meaning that they must be in writing in order to be valid. The writing requirement contains a number of exceptions, including estoppel and implication, which we will study. But it is useful to remember that writing is at least formally a “requirement” that must be met unless an exception applies. In particular, easements are granted by deeds, just like grants of land. Sometimes an easement is created or transferred in a deed that also grant lands subject to the easement, and sometimes an easement is the only thing granted in a deed.
When we say an easement “runs with the land,” we are really talking about two different things, and it is important that we analyze each of these separately. First, we must decide whether the burden of an easement runs with ownership of the burdened land. That is, if I own land that another has a right to cross, I am burdened by an easement. If when I grant this land to another the burden remains on the land, we say that the burden of the easement has run with the ownership of the burdened or servient holding.
So when does this happen? In a nutshell, there are three requirements that must be met before the burden is determined to run. (1) The easement must be in writing. It need not appear in every deed subsequent to the one in which was created, so long as the easement is in the chain of title. (2) The burden of the easement must be intended to run with the burdened land. Intent may be presumed, and so ambiguity doesn’t defeat this element. But if it is plain that the easement was not intended to run, then this element will not be met. (3) The owner of the burdened property must have had notice of the easement.
Note that the third requirement differs from the first two in the following respect. The first two elements are directed at the original grant of the easement. That is, we can decide whether they are met by looking only at what was going on, perhaps a long time ago, when the easement was created. What did the original parties to the easement intent? And did they put it in writing?
The third element, by contrast, looks at whether the new owner of the burdened land had notice of the easement, without regard to the effect of the easement on prior owners of that land, however many of them there may have been. If the new owner lacked notice, the easement does not burden him or her. Notice can come in three forms: (1) actual notice, which means that the new owner actually knows about the easement, (2) record (or constructive) notice, which exists if the easement could have been found in a title search, and (3) inquiry notice, which exists if there is something about the land or some other clue that should have led the new owner to inquire further thus discovering the existence of the easement. Importantly, if an easement expressing an intent to run with the land is duly recorded, all three elements will be met, and the burden of the easement will run with the land.
Second, we must decide whether the benefit of an easement runs with the ownership of some parcel of land. That is, if I have the right to use someone else’s land, I have the benefit of an easement. If when I sell property I own, the benefit of that easement automatically transfers to the grantee, then we say that the benefit of the easement runs with the ownership of the benefitted, or dominant holding.
Formally, it is simple for the benefit of an easement to run. It does so whenever it was intended to run. An easement intended to run with some benefitted land is called appurtenant to the benefitted land (also called the dominant tenement holding or dominant estate). Otherwise, the easement is personal to the grantee and is called in gross.
Unfortunately, it is not always clear whether a grantor intended for an easement to stay with the grantee or run with the grantee’s land. What then? Consider the easement examples above, where B is given a right to use A’s property. Sometimes the easement benefits B because of B’s location. That is, the easement benefits B because of the relation of the easement to land B owns. For example, the driveway and the trail are useful to B because B owns property that is made more convenient or enjoyable by the easement. Such easements are deemed to be appurtenant absent grantor intent to the contrary. Courts will often presume an easement is appurtenant unless it is clearly otherwise.
When, on the other hand, the easement is useful to B regardless of any land B might hold, the easement is deemed to be in gross absent contrary intent. The easement to run utility lines across a strip of A’s property is the most common example. There the utility company has the easement and will benefit from the easement to the same degree no matter where it moves its corporate headquarters or other property, including power plants. The usefulness of the easement is the same, practically regardless of where B owns land.
In sum: The burden runs when there is writing, intent, and notice. The benefit runs if intended, i.e. appurtenant rather than in gross.
Appurtenant easements are transferred automatically with the transfer of the lands burdened and benefitted by them. They may not be severed. That is, one may not prevent the benefit of an appurtenant easement from passing to the grantee of the dominant parcel without terminating or modifying the easement, which requires the agreement of the holder of the burdened parcel.
The benefit of easements held in gross was traditionally held to be nontransferable. This has changed. Unless the benefit of the easement was intended to be nontransferable, must courts will allow it to be alienated. Some courts distinguish commercial, in gross easements from personal, in gross easements, allowing the former but not the latter to be transferred. (Remember that when we say that the benefit can be transferred, we mean that the holder of the benefit can give that benefit away to someone else, without obtaining the consent of the servient holder.)
Easements will last until they are not terminated. This can occur when: (1) the terms of the easement itself set a time or condition for termination; (2) the dominant and servient holders agree to terminate the easement; (3) the dominant and servient lands are merged under a single owner (one cannot have an easement over one’s own land); (4) the dominant holder by words or deed abandons the easement; (5) the servient holder takes over the easement by prescription; (6) condemnation by the state; (7) the death of the in-gross holder if not intended to be transferable.
In addition to these courts have long had ways to terminate easements that have outlived their usefulness. Courts have readily found abandonment in such cases or have declared that the easement’s purpose has been frustrated. The modern trend is towards applying the changed conditions doctrine of covenants to easements as well. We will study this doctrine in the covenants context.
532 S.W.2d 763 (Ky. 1976)
Harry M. Caudill, Whitesburg, for appellants.
Ronald G. Polly, Polly & Craft, Whitesburg, for appellees.
This is an action to establish a right to the use of a roadway, which is 10 to 12 feet wide and about 250 feet long, over the unenclosed, hilly woodlands of another. The claimed right to the use of the roadway is twofold: by prescription and by estoppel. Both issues are heatedly contested. The evidence is in conflict as to the nature and type of use that had been made of the roadway. The lower court determined that a right to the use of the roadway by prescription had not been established, but that it had been established by estoppel. The landowners, feeling themselves aggrieved, appeal. We will consider the two issues separately.
In Grinestaff v. Grinestaff, Ky., 318 S.W.2d 881 (1958), we said that an easement may be created by express written grant, by implication, by prescription, or by estoppel. It has long been the law of this commonwealth that “(an) easement, such as a right of way, is created when the owner of a tenement to which the right is claimed to be appurtenant, or those under whom he claims title, have openly, peaceably, continuously, and under a claim of right adverse to the owner of the soil, and with his knowledge and acquiescence, used a way over the lands of another for as much as 15 years.” Flener v. Lawrence, 187 Ky. 384, 220 S.W. 1041 (1920); Rominger v. City Realty Company, Ky., 324 S.W.2d 806 (1959).
In 1942 appellants purchased the subject property. In 1944 they gave permission for a haul road to be cut for the purpose of moving coal from a newly opened mine. The roadway was so used until 1949, when the mine closed. During that time the appellants were paid a royalty for the use of the road. In 1957 appellants built a tenant house on their property and the roadway was used by them and their tenant. The tenant house burned in 1961 and was not replaced. In 1964 the appellees bought their three-acre building site, which adjoins appellants, and the following year built their residence thereon. At all times prior to 1965, the use of the haul road was by permission of appellants. There is no evidence of any probative value which would indicate that the use of the haul road during that period of time was either adverse, continuous, or uninterrupted. The trial court was fully justified, therefore, in finding that the right to the use of this easement was not established by prescription.
As to the issue on estoppel, we have long recognized that a right to the use of a roadway ever the lands of another may be established by estoppel. In Lashley Telephone Co. v. Durbin, 190 Ky. 792, 228 S.W. 423 (1921), we said:
Though many courts hold that a licensee is conclusively presumed as a matter of law to know that a license is revocable at the pleasure of the licensor, and if he expend money in connection with his entry upon the land of the latter, he does so at his peril * * *, yet it is the established rule in this state that HN3where a license is not a bare, naked right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements thereon, the licensor may not revoke the license and restore his premises to their former condition after the licensee has exercised the privilege given by the license and erected the improvements at considerable expense; * * *.
In Gibbs v. Anderson, 288 Ky. 488, 156 S.W.2d 876 (1941), Gibbs claimed the right, by estoppel, to the use of a roadway over the lands of Anderson. The lower court denied the claim. We reversed. Anderson’s immediate predecessor in title admitted that he had discussed the passway with Gibbs before it was constructed and had agreed that it might be built through his land. He stood by and saw Gibbs expend considerable money in this construction. We applied the rule announced in Lashley Telephone Co. v. Durbin, supra, and reversed with directions that a judgment be entered granting Gibbs the right to the use of the passway.
In McCoy v. Hoffman, Ky., 295 S.W.2d 560 (1956), the facts are that Hoffman had acquired the verbal consent of the landowner to build a passway over the lands of the owner to the state highway. Subsequently, the owner of the servient estate sold the property to McCoy, who at the time of the purchase was fully aware of the existence of the roadway and the use to which it was being put. McCoy challenged Hoffman’s right to use the road. The lower court found that a right had been gained by prescription. In this court’s consideration of the case, we affirmed, not on the theory of prescriptive right but on the basis that the owner of the servient estate was estopped. After announcing the rule for establishing a right by prescription, we went on to say:
* * * On the other hand, the right of revocation of the license is subject to the qualification that where the licensee has exercised the privilege given him and erected improvements or made substantial expenditures on the faith or strength of the license, it becomes irrevocable and continues for so long a time as the nature of the license calls for. In effect, under this condition the license becomes in reality a grant through estoppel. * * *.
In Akers v. Moore, Ky., 309 S.W.2d 758 (1958), this court again considered the right to the use of a passway by estoppel. Akers and others had used the Moore branch as a public way of ingress and egress from their property. They sued Moore and others who owned property along the branch seeking to have the court recognize their right to the use of the roadway and to order the removal of obstructions which had been placed in the roadway. The trial court found that Akers and others had acquired a prescriptive right to the use of the portion of the road lying on the left side of the creek bed, but had not acquired the right to the use of so much of the road as lay on the right side of the creek bed. Consequently, an appeal and a cross-appeal were filed. Considering the right to the use of the strip of land between the right side of the creek bed and the highway, this court found that the evidence portrayed it very rough and apparently never improved, that it ran alongside the house in which one of the protestors lived, and that by acquiescence or by express consent of at least one of the protestors the right side of the roadway was opened up so as to change the roadway from its close proximity to the Moore residence. The relocated portion of the highway had only been used as a passway for about six years before the suit was filed. The trial court found that this section of the road had not been established as a public way by estoppel. We reversed. In doing so, we stated:
We consider the fact that the appellees, Artie Moore, et al, had stood by and acquiesced in (if in fact they had not affirmatively consented) the change being made and permitted the appellants to spend money in fixing it up to make it passable and use it for six years without objecting. Of course, the element of time was not sufficient for the acquisition of the right of way by adverse possession. But the law recognizes that one may acquire a license to use a passway or roadway where, with the knowledge of the licensor, he has in the exercise of the privilege spent money in improving the way or for other purposes connected with its use on the faith or strength of the license. Under such conditions the license becomes irrevocable and continues for so long a time as its nature calls for. This, in effect, becomes a grant through estoppel. Gibbs v. Anderson, 288 Ky. 488, 156 S.W.2d 876; McCoy v. Hoffman, Ky., 295 S.W.2d 560. It would be unconscionable to permit the owners of this strip of land of trivial value to revoke the license by obstructing and preventing its use.
In the present case the roadway had been used since 1944 by permission of the owners of the servient estate. The evidence is conflicting as to whether the use of the road subsequent to 1965 was by permission or by claim of right. Appellees contend that it had been used by them and others without the permission of appellants; on the other hand, it is contended by appellants that the use of the roadway at all times was by their permission. The evidence discloses that during the period of preparation for the construction of appellees’ home and during the time the house was being built, appellees were permitted to use the roadway as ingress and egress for workmen, for hauling machinery and material to the building site, for construction of the dwelling, and for making improvements generally to the premises. Further, the evidence reflects that after construction of the residence, which cost $25,000, was completed, appellees continued to regularly use the roadway as they had been doing. Appellant J. S. Holbrook testified that in order for appellees to get up to their house he gave them permission to use and repair the roadway. They widened it, put in a culvert, and graveled part of it with “red dog”, also known as cinders, at a cost of approximately $100. There is no other location over which a roadway could reasonably be built to provide an outlet for appellees.
No dispute had arisen between the parties at any time over the use of the roadway until the fall of 1970. Appellant J. S. Holbrook contends that he wanted to secure a writing from the appellees in order to relieve him from any responsibility for any damage that might happen to anyone on the subject road. On the other hand, Mrs. Holbrook testified that the writing was desired to avoid any claim which may be made by appellees of a right to the use of the roadway. Appellees testified that the writing was an effort to force them to purchase a small strip of land over which the roadway traversed, for the sum of $500. The dispute was not resolved and appellants erected a steel cable across the roadway to prevent its use and also constructed “no trespassing” signs. Shortly thereafter, the suit was filed to require the removal of the obstruction and to declare the right of appellees to the use of the roadway without interference.
The use of the roadway by appellees to get to their home from the public highway, the use of the roadway to take in heavy equipment and material and supplies for construction of the residence, the general improvement of the premises, the maintenance of the roadway, and the construction by appellees of a $25,000 residence, all with the actual consent of appellants or at least with their tacit approval, clearly demonstrates the rule laid down in Lashley Telephone Co. v. Durbin, supra, that the license to use the subject roadway may not be revoked.
The evidence justifies the finding of the lower court that the right to the use of the roadway had been established by estoppel.
The judgment is affirmed.
All concur, except Stephenson , J., who dissents.
Goodman, Mackenzie, Gorin & Blease, for complainants.
Shannahan & Cunningham, James M. Shannahan, Matthew C. Cunningham, for respondent.
This bill in equity was brought to establish an irrevocable right in the land of the respondent for use as a driveway to the garage of the complainants. The cause was heard in the superior court on bill, answer and proof, and thereafter a decree was entered denying and dismissing the bill of complaint. From such decree the complainants have prosecuted an appeal to this court.
Their reasons of appeal are that the decree and the decision on which it is based are against the law, against the evidence and against the law and the evidence and the weight thereof.
The testimony discloses that on May 27, 1922 the complainants purchased a house on Carver street in the city of Pawtucket and that within a month thereafter respondent’s husband purchased the adjoining property. It further appears that the distance between the foundations of both houses is approximately 14.5 feet, only 5.8 feet of which is the property of complainants. It is mutually agreed that at the time the parties purchased their respective properties a wooden fence separated the properties along the boundary lines. A few years later this fence was taken down and replaced by a hedge, which although planted by respondent’s husband was a joint venture and Henry and Dalton each contributed one half of its cost.
It is undisputed that prior to 1938 the respondent and her husband owned a garage in the rear of their property, which from time to time was rented to different tenants, one of whom was the complainant William E. Henry. Access to the garage was had over the property of respondent between her house and the hedge.
In 1938 complainant William E. Henry spoke to respondent’s husband about removing the hedge from the boundary line and making common use of their respective properties as a driveway. Henry explained that he wished to construct a two-car garage at the rear of his property since he and his son each had a car. It is undisputed that William Dalton, husband of respondent, readily gave his permission and respondent states in her deposition that her husband advised her of the request and of his consent. The hedge was removed and complainants filled in their own strip to bring it up to grade with their neighbors’ land. At the same time the Henrys constructed a two-car garage at the rear of their property.
Although there is conflicting testimony as to whether or not thereafter the Daltons were careful to drive only over the strip which constituted their exclusive property, it is undisputed that until sometime in 1957 the Henrys and the Daltons and their friends used the driveway freely without incident and relations between the parties were friendly and harmonious. In 1954 respondent and her husband placed two posts in the driveway with a chain between them to prevent strangers from backing in and out. It appears that this was done because the Daltons were concerned for the safety of their grandchildren. This measure was taken without consulting the Henrys, but complainant William Henry testified that relations remained as friendly as ever.
In November 1956 complainants negotiated for the sale of their home in Pawtucket intending to purchase a home in the town of Cumberland, which property they had visited with the Daltons in June of that year. The complainant husband testified that in June 1956 he told William Dalton of this intention. He stated that both Mr. and Mrs. Dalton accompanied them on a visit to the Cumberland property and at that time Mr. Dalton assured him that there would be no trouble about the driveway in the sale of the Pawtucket property.
It is undisputed that about the second week in November 1956 Mr. Henry called on the Daltons and requested that they execute an instrument which would have granted an easement in the driveway, with covenants for each of the parties to maintain one-half thereof and binding on them, their heirs and assigns forever. William Dalton, who at that time was seriously ill and died the following January, refused to execute the agreement stating that signing it was out of the question and he intended to close the driveway.
After the death of William Dalton in January 1957 relations between complainants and respondent apparently became strained. It appears from the testimony of complainants’ daughter Dorothy L. Henry that until September 1957 complainants continued to use the driveway despite admitted differences, but in that month she and Mrs. Dalton exchanged words and two days thereafter complainants were notified by Mrs. Dalton’s attorney that, unless the wishes of his client regarding the use of the driveway were respected, permission for its use by complainants would be withdrawn. It does not appear in the record whether any discussions or conferences were had between the parties following receipt of this communication, but on December 4, 1957, complainants brought their bill of complaint.
The testimony of complainant William E. Henry was substantially corroborated by that of his wife and their daughter. Because of illness, respondent Jane E. Dalton was unable to testify at the trial, but her testimony was taken by deposition and was substantially corroborated by her son Raymond.
The parties differed in their testimony in that while the Henrys insisted that they had paid for the crushed stone, that maintenance of the driveway in such things as clearing it of snow was a joint venture without regard for boundary lines, and that the Daltons drove their car down the center, respondent and her son insisted that William Dalton paid for the crushed stone, that each family removed snow only from their respective portion of the driveway, and that the Daltons drove only on that part of the driveway constituting a part of their land. The trial justice found these conflicting statements were not material to the issue and we agree with him.
The complainants make no claim that they have acquired an easement by adverse use. They could not prevail on such a theory since it is undisputed that the use originated by permission. Earle v. Briggs, 49 R.I. 6, 139 A. 499; Foley v. Lyons, 85 R.I. 86, 125 A.2d 247. However, they contend that a license even though orally granted becomes irrevocable when the licensee, relying on the parol agreement, changes his position by making alterations on his property. They argue that in such circumstances withdrawal of the permission by the licensor would constitute “fraud” within the meaning of proceedings in equity.
The complainants maintain that when they expended money and labor in bringing the grade of their property up to respondent’s property and constructed a garage, ingress and egress to which depended upon the permanence of the license, they had changed their position in reliance upon their understanding with Mr. Dalton and by implication with respondent, so that the license became executed and by the rule adopted in some jurisdictions was irrevocable. They rely on a line of cases apparently beginning with Rerick v. Kern, 14 S. & R. (Pa.) 267.
In that case the respondent gave oral permission to the complainant to divert a stream of water and thus permit the complainant to construct a mill which after considerable expense apparently became very profitable. The Pennsylvania court held that, when the complainant relying on the respondent’s permission expended money and labor, the license became executed and on the theory of estoppel could not be revoked. That principle has been adopted in some other jurisdictions, notably Ohio, Maine, New Hampshire, Oregon, Georgia, Minnesota and Indiana. The complainants have commended for our consideration decisions in the latter four of these jurisdictions, citing Powers v. Coos Bay Lumber Co., 200 Ore. 329, 263 P.2d 913; Shepard v. Purvine, 196 Ore. 348, 248 P.2d 352; Brantley v. Perry, 120 Ga. 760, 48 S.E. 332; Stoering v. Swanson, 139 Minn. 115, 165 N.W. 875; Indianapolis & Cincinnati Traction Co. v. Arlington Tel. Co., 47 Ind. App. 657, 95 N.E. 280.
They acknowledge that the authorities are divided on the question, but contend that this court indicated commendation of their contention in Foster v. Browning, 4 R.I. 47. That was an action of trespass for breaking and entering the plaintiff’s close in which the court reversed the trial justice for instructing the jury that if the plaintiff’s predecessor in title had orally licensed a right of way to Browning, and the latter relying on said license had expended moneys in opening and building the way, the license thereby became irrevocable. This was an action at law and Ames, C. J., in speaking for this court, stated at page 52: “In Maine, New Hampshire, Pennsylvania, and Ohio, and perhaps in some other states, the exploded doctrine of some of the earlier English cases is still maintained at law upon equitable grounds of estoppel, and part-performance of a parol contract, which certainly from their inherent justice would commend themselves to our attention as a court of law, had we not full powers as a court of equity to do justice in a proper case of this sort when applied to on that side of the court.”
It appears from the discussion by Ames, C. J. that the license to Browning, although parol, was to him and his heirs in perpetuity. In the instant case there was no definiteness as to time. We are convinced furthermore that the Foster case, as it relates to the case at bar, is authority only for the proposition that a contention such as that made by complainants here has no validity in law and could be advanced for consideration only in equity proceedings. We are persuaded that the rule contended for is in the minority and should not be adopted by this court.
We are of the opinion that in reason and justice the better rule is expressed in the case of Crosdale v. Lanigan, 129 N.Y. 604, 29 N.E. 824. There the plaintiff was required to remove a wall built on the property of the defendant pursuant to a license. The court stated the rule at page 610 as follows:
* * * a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is, nevertheless, revocable at the option of the licensor, and this, although the intention was to confer a continuing right and money had been expended by the licensee upon the faith of the license. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements, easily misunderstood. It gives security and certainty to titles, which are most important to be preserved against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land, is clearly defined and well understood, and is indisputable; but to change what commenced in a license into an irrevocable right, on the ground of equitable estoppel, is another and quite different matter. It is far better, we think, that the law requiring interests in land to be evidenced by deed, should be observed, than to leave it to the chancellor to construe an executed license as a grant, depending upon what, in his view, may be equity in the special case.
The complainants call to our attention the case of Weeden v. Babcock, apparently decided in this jurisdiction, and of which some discussion is had by Ames, C. J. in Foster v. Browning, supra. It is not published in our reports and we are unable to discover that it is otherwise reported. In any event it would appear that in the Weeden case the complainant yielded up an existing easement in return for a promise from the respondent that an equally acceptable easement would be substituted for that surrendered by the complainant. No such circumstances are present in the instant case and for whatever authority Weeden v. Babcock may stand, it is not applicable to the case at bar.
Counsel for the complainants urge that the statute of frauds was conceived and is designed to protect against fraud and should not be used to assist in the perpetration of fraud. We are in accord with this contention, but are not convinced that in the circumstances of the instant case the respondent’s revocation of the complainants’ license is fraudulent within any acceptable definition of that term. The right which complainants seek to establish in the land of the respondent is essentially an easement and should be the subject of a grant, expressed in the solemnity of a written instrument. It is no hardship for one in the position of these complainants either to secure an easement in perpetuity in the manner provided by the statute, or, such being refused, to weigh the advantages inuring to them as against the uncertainty implicit in the making of expenditures on the basis of a revocable license.
The complainants’ appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.
649 S.E.2d 317 (Ct. App. Ga. 2007)
W. Dent Acree, Atlanta, for Appellant.
Karsten Bicknese, Seacrest, Karesn, Tate & Bicknese, Atlanta, for Appellee.
The Superior Court of Fulton County granted the motion for summary judgment filed by BP Products North America, Inc. in the action to enforce an easement filed by Decker Car Wash, Inc. The trial court denied Decker’s cross-motion for summary judgment. Decker appeals, contending that, pursuant to OCGA § 44-9-4, a parol license to use BP’s property had ripened into an easement running with the land in favor of Decker’s property. For the reasons that follow, we affirm.
Viewed in the light most favorable to Decker, 1 the undisputed evidence showed that Miles F. Daly, Sr. bought 2980 Piedmont Road, Atlanta, in 1964 and operated a car dealership there for the next 30 years. When Daly bought the property, Gulf Oil owned and operated a gas station on the adjacent property, which was at the corner of Piedmont Road and Pharr Road. Daly deposed, without contradiction, that
[s]tarting in approximately 1965, and continuing to 1995, [he] had several verbal conversations with the owners and operators of the Gulf Station property[.] … In the course of these conversations, [Daly and the owners and operators of the Gulf Station] agreed to maintain a mutually beneficial black topped driveway on an area of [Daly’s] property, whereby parties leaving [Daly’s] property could use this area for egress to the Gulf Station property for vehicular and pedestrian traffic, to allow [his] customers to go and purchase gas at the station, and exit through the Gulf Property to the curb cuts on Pharr Road and to enable such customers to turn left onto Pharr Road or to turn right onto Pharr Road to use the traffic signal at that corner.
Daly and Gulf Oil constructed a driveway connecting the properties. BP became the owner of the gas station in 1985, through a corporate merger, and Daly’s customers continued using the driveway.
Daly closed the car dealership in 1995. After dividing 2980 Piedmont Road into two subparcels, Daly leased the subparcel adjacent to the gas station to Decker in 2001. Decker built a large car wash on the property, at great expense, which opened in 2003. In 2004, Decker’s owner, Francis Lynch, learned that BP had decided to replace the store on its property and to reconfigure the parking lot. BP erected a chain barricade across the driveway that connected the BP station and Decker’s car wash and later built a solid wall there.
Decker brought this action seeking a declaratory judgment, a temporary restraining order, and damages. After a hearing, the trial court denied Decker’s request for injunctive relief. After a second hearing to consider the parties’ cross-motions for summary judgment, the trial court granted BP’s motion and denied Decker’s motion.
Decker asserts that, because Daly and Gulf Oil mutually agreed to link their properties with a driveway and to allow use by the other for ingress and egress and then Daly incurred expenses in the execution of the license, the license ripened into an easement running with the land which Decker is entitled to enforce. In the alternative, Decker asserts that in 2003 BP gave Decker a parol license to use the gas station property for ingress and egress, and similarly that it incurred expenses in the execution of the license which ripened into an easement running with the land.
Under the Statute of Frauds, an oral agreement conveying an interest in land is unenforceable. OCGA § 13-5-30(4). One limited exception to the Statute of Frauds is set out in OCGA § 44-9-4, as follows:
A parol license to use another’s land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such a case it becomes an easement running with the land.
This executed parol license doctrine is essentially one of estoppel. 2 As the Supreme Court of Georgia explained in a case upon which the Code section was based, “where acts have been done by one party, upon the faith of a license given by another, the [licensor] will be estopped from revoking it to the injury of the [licensee], and this even if the exercise of the right given by the license, is of a nature to amount to the enjoyment of an easement or other incorporated hereditament.” Sheffield v. Collier, 3 Ga. 82, 87 (1847). A license subject to this exception is one such as permission to erect a building or other structure, “which in its own nature seems intended to be permanent and continuing.” Id. at 86. In the case of such a license, the licensee would necessarily have to incur expense to execute the agreement and would sustain a resulting loss if the licensor were entitled to later revoke the license. Id. 3 When the enjoyment of a license must necessarily be preceded by the expenditure of money, and when the licensee “has made improvements or invested capital in consequence of it, he has become a purchaser for a valuable consideration.” Id. at 88. 4 This is so because such a license “is a direct encouragement to expend money, and it would be against all conscience to annul it, as soon as the benefit expected from the expenditure is beginning to be perceived.” (Punctuation omitted.) Id. at 88-89. In other words, where the license has been executed, “in distinction from cases where it is executory only,” it becomes irrevocable. Id. at 85. 5
As noted in the Restatement, “[t]he power to dispense with the Statute [of Fraud]’s requirements to give effect to the intent of the parties [to an oral agreement to create a servitude] should be exercised with caution[,] because of the risk that exceptions will undermine the policies underlying the Statute of Frauds[,]” and only when necessary to prevent injustice. Restatement of the Law (Third) of Property: Servitudes, § 2.9(b). Where the execution of a parol license does not require erecting a structure on the licensor’s land, Georgia courts have generally recognized the creation of an irrevocable easement only where the licensee’s enjoyment of the license is necessarily preceded by some investment of funds which increases the value of the licensor’s land to the licensor. Cox v. Zucker, 214 Ga. 44, 51-52(3), 102 S.E.2d 580 (1958) (despite the fact that in reliance on a license the licensee erected a building that could only be reached by crossing the licensor’s property, the license was revocable where the licensee did nothing to improve the burdened estate); Tift v. Golden Hardware Co., 204 Ga. 654, 667-669(6), 51 S.E.2d 435 (1949) (license was revocable where a hardware company built a warehouse in anticipation of using a spur track across the licensor’s property but did nothing to enhance the value of the spur track on the subservient property). In these cases, the mere fact that a licensee erects improvements upon his own land in the expectation of enjoying a parol license, and thereby incurs expense, is not enough to make the license irrevocable under OCGA § 44-9-4. 6
To the extent Decker contends a license of ingress and egress granted to Daly ripened into an easement that runs with the land, there is no evidence that Daly built any structure or improvement on BP’s land such as would bring it within the cases cited in note 5, supra. Furthermore, despite Daly’s expenditures improving his own land in the expectation of enjoying the license, there is no evidence Daly invested a substantial amount in improving BP’s land. As a result, we conclude that the undisputed evidence established that Daly did not act pursuant to the oral license of ingress and egress and in so doing incur expense in consequence of the license, as those terms are used in OCGA § 44-9-4. See McCorkle v. Morgan, 268 Ga. 730, 731, 492 S.E.2d 891 (1997) (where licensees used a parking lot for six years before incurring any expenses in connection with it, “the licensee’s enjoyment of the license was not preceded necessarily by the expenditure of money,” and, therefore, the license did not ripen into an easement pursuant to OCGA § 44-9-4). Before BP’s predecessor-in-interest granted Daly the license, Daly operated a car dealership (and later Decker operated a car wash) on his property, and ingress and egress was on Piedmont Road. After BP revoked the license, Decker operated the existing car wash, and ingress and egress for Daly’s property was on Piedmont Road. Because Daly’s parol license to use BP’s land did not ripen into an easement pursuant to OCGA § 44-9-4, it follows that BP was entitled to revoke the license.
To the extent Decker contends a license of ingress and egress granted directly to it ripened into an easement, there is no evidence that BP granted Decker any such license. OCGA § 44-9-4 “is operative only where there is an express oral license; [i]t does not apply to implied licenses[,]” as may be presumed from the acts of the licensor. Berolzheimer v. Taylor, 230 Ga. 595, 600, 198 S.E.2d 301 (1973). While there is evidence that Decker’s owner believed and assumed that Decker had permission to use the gas station for ingress and egress, there is no evidence that an authorized agent of BP ever granted Decker express permission to do so. 7 It follows that BP was entitled to terminate Decker’s use of the BP’s property. Id.
Because no jury issue has been presented regarding whether any parol license to use the gas station property ripened into an easement running with the land, the trial court correctly granted BP’s motion for summary judgment.
Andrews , P.J., and Adams J., concur.
148 Kan. 495 (1938)
Guy Lamer and DeWitt M. Stiles, both of Iola, for appellant.
T. R. Evans, B. M. Dunham, and James A. Allen, all of Chanute, for appellees.
The action was brought to enjoin defendants from using and maintaining an underground lateral sewer drain through and across plaintiff’s land. The case was tried by the court, judgment was rendered in favor of defendants, and plaintiff appeals.
In the city of Chanute, Highland avenue running north and south intersects Tenth street running east and west. In the early part of 1904 Laura A. J. Bailey was the owner of a plot of ground lying east of Highland avenue and south of Tenth street. Running east from Highland avenue and facing north on Tenth street the lots are numbered, respectively, 19, 20 and 4. In 1904 the residence of Mrs. Bailey was on lot 4 on the east part of her land.
In the latter part of 1903, or the early part of 1904, the city of Chanute constructed a public sewer in Highland avenue, west of lot 19. About the same time a private lateral drain was constructed from the Bailey residence on lot 4 running in a westerly direction through and across lots 20 and 19 to the public sewer.
On January 15, 1904, Laura A. J. Bailey conveyed lot 19 to John J. Jones, by general warranty deed with usual covenants against encumbrances, and containing no exceptions or reservations. Jones erected a dwelling on the north part of the lot. In 1920 Jones conveyed the north 156 feet of lot 19 to Carl D. Reynolds; in 1924 Reynolds conveyed to the plaintiff, who has owned and occupied the premises since that time.
In 1904 Laura A. J. Bailey conveyed lot 20 to one Murphy, who built a house thereon and by mesne conveyances the title passed to the defendant Louise Royster. The deed to Murphy was a general warranty deed without exceptions or reservations. The defendant Gray has succeeded to the title to lot 4 upon which the old Bailey home stood at the time Laura A. J. Bailey sold lots 19 and 20.
In March, 1936, plaintiff discovered his basement flooded with sewage and filth to a depth of six or eight inches, and upon investigation he found for the first time that there existed on and across his property a sewer drain extending in an easterly direction across the property of Royster to the property of Gray. The refusal of defendants to cease draining and discharging their sewage across plaintiff’s land resulted in this lawsuit.
The trial court returned findings of fact, from which we quote:
The plaintiff and the defendants Louise Royster and Lael Bailey Gray are the present owners, respectively, of properties adjoining one another in Bailey’s Addition to the City of Chanute, Kansas, on each of which properties there is a residence, the plaintiff being the owner of Lot 19, the defendant Louise Royster being the owner of part of Lot 20, and the defendant Lael Bailey Gray being the owner of Lot 4, part of original Lot 9 in Block 3, in said Addition. All of said properties front to the north on Tenth Street. Plaintiff’s property is farthest west. Immediately adjoining it on the east is the Royster property and immediately adjoining the Royster property on the east is the Gray property. Immediately adjoining plaintiff’s property on the west is Highland Avenue, a public street.
2. Laura A. J. Bailey was originally the owner of all the above described properties and other land adjacent thereto and prior to the summer of 1904 the only residence or dwelling house on any of said properties was the house on the property fartherest east, namely Lot 4, being the property now owned by Gray.
3. On January 15, 1904, Laura A. J. Bailey sold to John J. Jones said Lot 19 (and other land) and conveyed same to him by general warranty deed, and with usual covenants against encumbrances, and containing no exceptions or reservations whatsoever. The deed was duly recorded. John Jones erected a dwelling house on the north 156 feet of Lot 19. On January 12, 1920, John Jones conveyed the north 156 feet of Lot 19 to Carl D. Reynolds by general warranty deed containing usual covenants against encumbrances, and containing no exceptions or reservations whatsoever, but also included the “appurtenances thereunto belonging,” etc. This deed was duly recorded. On November 7, 1934, Carl D. Reynolds conveyed said last described property to plaintiff by general warranty deed with usual covenants against encumbrances excepting only a mortgage thereon, but also including the “appurtenances thereunto belonging,” etc. Plaintiff has owned and occupied said property ever since.
4. On April 14, 1904, Laura A. J. Bailey conveyed part of Lot 20 to W. P. Murphy who erected a dwelling house on the lot and later sold that property to W. E. Royster, conveying the same by general warranty deed without reservation but including the ‘appurtenances thereunto belonging,’ etc., and from said W. E. Royster the property passed to the defendant Louise Royster.
5. The defendant Lael Bailey Gray has succeeded to the title to Lot 4 upon which the old Bailey house stood at the time Laura Bailey sold the other lots.
6. In the latter part of the year 1903 or the early part of 1904 the City of Chanute extended its public sewer system and constructed a public sewer running north and south in Highland Avenue immediately west of Lot 19 above mentioned. When this public sewer was constructed a private sewer was laid from the old Bailey house on Lot 4 in a general westerly direction across Lots 20 and 19 to the public sewer in Highland Avenue and the old Bailey house was connected through this private sewer to the public sewer. When the houses were erected on Lot 19 and Lot 20 respectively, these houses were connected with this private sewer, and the same has been in continuous use for all of said properties ever since.
7. At the time Laura A. J. Bailey sold Lot 19 to Jones she owned Lot 18 which lies south of Lots 19 and 20, extends in an east and west direction from the west boundary of Lot 4 (or original Lot 9) near the southwest corner thereof to Highland Avenue. The east boundary of Lot 18 is contiguous with the west boundary of original Lot 9 for a distance of at least 20 feet north from the southwest corner of said Lot 9. Lot 18 was not sold by Mrs. Bailey until November, 1905.
8. There is not now and was not at the time plaintiff purchased his property anything on record in the office of the Register of Deeds of the county pertaining to the private sewer above referred to.
9. At the time plaintiff purchased his property he and his wife made a careful and thorough inspection of the same, knew that the house they were buying was equipped with modern plumbing and knew that the plumbing had to drain into a sewer, but otherwise had no further knowledge of the existence of said lateral sewer.
10. That the lateral sewer in controversy was installed prior to the sale of the property by Mrs. Laura A. J. Bailey to John J. Jones on January 15, 1904; but if not, the said lateral sewer certainly was installed shortly after the sale to John J. Jones and with the knowledge and acquiescence of said John J. Jones, and that the said John J. Jones paid the said Mrs. Laura A. J. Bailey one-third of the cost of the installation of the said sewer.
11. That all of the original owners of the three properties in controversy, to-wit, Laura A. J. Bailey, John J. Jones and W. P. Murphy, had notice and knowledge of the existence of the lateral sewer in controversy, and all acquiesced in the use of the sewer by all parties, and the use of the sewer by the said parties and their successors in interest has been continuous from the time of its installation to the present time-a period of more than 33 years-and has been a mutual enterprise and the said lateral sewer was an appurtenance to the properties belonging to plaintiff and Louise Royster, and the same is necessary to the reasonable use and enjoyment of the said properties of the parties.
The drain pipe in the lateral sewer was several feet under the surface of the ground. There was nothing visible on the ground in the rear of the houses to indicate the existence of the drain or the connection of the drain with the houses.
As a conclusion of law the court found that “an appurtenant easement existed in the said lateral sewer as to all three of the properties involved in the controversy here.” Plaintiff’s prayer for relief was denied and it was decreed that plaintiff be restrained from interfering in any way with the lateral drain or sewer.
Plaintiff contends that the evidence fails to show that an easement was ever created in his land, and assuming there was an easement created, as alleged, that he took the premises free from the burden of the easement for the reason that he was a bona fide purchaser, without notice actual or constructive.
Defendants contend: (1) That an easement was created by implied reservation on the severance of the servient from the dominant estate of the deed from Mrs. Bailey to Jones; (2) there is a valid easement by prescription.
In finding No. 11, the court found that the lateral sewer “was an appurtenance to the properties belonging to plaintiff and Louise Royster, and the same is necessary to the reasonable use and enjoyment of the said properties of the parties.”
As an easement is an interest which a person has in land in the possession of another, it necessarily follows that an owner cannot have an easement in his own land. Johnston v. City of Kingman, 141 Kan. 131, 39 P.2d 924, 98 A.L.R. 588; Ferguson v. Ferguson, 106 Kan. 823, 189 P. 925.
However, an owner may make use of one part of his land for the benefit of another part, and this is frequently spoken of as a quasi easement. “When one thus utilizes part of his land for the benefit of another part, it is frequently said that a quasi easement exists, and the part of the land which is benefited being referred to as the ‘quasi dominant tenement’ and the part which is utilized for the benefit of the other part being referred to as the ‘quasi servient tenement.’ The so called quasi easement is evidently not a legal relation in any sense, but the expression is a convenient one to describe the particular mode in which the owner utilizes one part of the land for the benefit of the other.
“If the owner of land, one part of which is subject to a quasi easement in favor of another part, conveys the quasi dominant tenement, an easement corresponding to such quasi easement is ordinarily regarded as thereby vested in the grantee of the land, provided, it is said, the quasi easement is of an apparent continuous and necessary character.” 2 Tiffany, Real Property (2d Ed.) pp. 1272, 1273.
Following the famous case of Pyer v. Carter, 1 Hurl. & N. 916, some of the English cases, and many early American cases, held that upon the transfer of the quasi servient tenement there was an implied reservation of an easement in favor of the conveyor. Under the doctrine of Pyer v. Carter, no distinction was made between an implied reservation and an implied grant.
The case, however, was overthrown in England by Suffield v. Brown, 4 De G.J. & S. 185, and Wheeldon v. Burrows, L.R. 12 Ch.D. 31. In the former case the court said:
It seems to me more reasonable and just to hold that if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, rather than to limit and cut down the operation of a plain grant (which is not pretended to be otherwise than in conformity with the contract between the parties), by the fiction of an implied reservation. If this plain rule be adhered to, men will know what they have to trust, and will place confidence in the language of their contracts and assurances.
* * *
But I cannot agree that the grantor can derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of him the grantor.
Many American courts of high standing assert that the rule regarding implied grants and implied reservations is reciprocal and that the rule applies with equal force and in like circumstances to both grants and reservations. Washburn on Easements, 4th Ed., 75; Miller v. Skaggs, 79 W.Va. 645, 91 S.E. 536, Ann.Cas.1918 D, 929.
On the other hand perhaps a majority of the cases hold that in order to establish an easement by implied reservation in favor of the grantor the easement must be one of strict necessity, even when there was an existing drain or sewer at the time of the severance.
Thus in Howley v. Chaffee et al., 88 Vt. 468, 474, 93 A. 120, 122, L.R.A.1915D, 1010, the court said:
With the character and extent of implied grants, we now have nothing to do. We are here only concerned with determining the circumstances which will give rise to an implied reservation. On this precise question the authorities are in conflict. Courts of high standing assert that the rule regarding implied grants and implied reservation of “visible servitudes” is reciprocal, and that it applies with equal force and in like circumstances to both grants and reservations. But upon a careful consideration of the whole subject, studied in the light of the many cases in which it is discussed, we are convinced that there is a clear distinction between implied grants and implied reservations, and that this distinction is well founded in principle and well supported by authority. It is apparent that no question of public policy is here involved, as we have seen is the case where a way of necessity is involved. To say that a grantor reserves to himself something out of the property granted, wholly by implication, not only offends the rule that one shall not derogate from his own grant, but conflicts with the grantor’s language in the conveyance, which by the rule is to be taken against him, and is wholly inconsistent with the theory on which our registry laws are based. If such an illogical result is to follow an absolute grant, it must be by virtue of some legal rule of compelling force. The correct rule is, we think, that where, as here, one grants a parcel of land by metes and bounds, by a deed containing full covenants of warranty and without any express reservation, there can be no reservation by implication, unless the easement claimed is one of “strict necessity,” within the meaning of that term as explained in Dee v. King, 73 Vt. 375, 50 A. 1109.
See, also, Brown v. Fuller, 165 Mich. 162, 130 N.W. 621, 33 L.R.A.,N.S., 459, Ann.Cas.1912C, 853. The cases are collected in 58 A.L.R. 837.
We are inclined to the view that the circumstance that the claimant of the easement is the grantor instead of the grantee, is but one of many factors to be considered in determining whether an easement will arise by implication. An easement created by implication arises as an inference of the intentions of the parties to a conveyance of land. The inference is drawn from the circumstances under which the conveyance was made rather than from the language of the conveyance. The easement may arise in favor of the conveyor or the conveyee. In the Restatement of Property, Tentative draft No. 8, Section 28, the factors determining the implication of an easement are stated:
Sec. 28. Factors Determining Implication of Easements or Profits.
In determining whether the circumstances under which a conveyance of land is made imply an easement or a profit, the following factors are important: (a) whether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the claim is made against a simultaneous conveyee, (e) the extent of necessity of the easement or the profit to the claimant, (f) whether reciprocal benefits result to the conveyor and the conveyee, (g) the manner in which the land was used prior to its conveyance, and (h) the extent to which the manner of prior use was or might have been known to the parties.
Comment (j) under the same Section, reads:
The extent to which the manner of prior use was or might have been known to the parties. The effect of the prior use as a circumstance in implying, upon a severance of possession by conveyance, an easement or a profit results from an inference as to the intention of the parties. To draw such an inference, the prior use must have been known to the parties at the time of the conveyance, or, at least, have been within the possibility of their knowledge at the time. Each party to a conveyance is bound not merely to what he intended, but also to what he might reasonably have foreseen the other party to the conveyance expected. Parties to a conveyance may, therefore, be assumed to intend the continuance of uses known to them which are in a considerable degree necessary to the continued usefulness of the land. Also they will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation. The degree of necessity required to imply an easement in favor of the conveyor is greater than that required in the case of the conveyee (see Comment b). Yet, even in the case of the conveyor, the implication from necessity will be aided by a previous use made apparent by the physical adaptation of the premises to it.
Illustrations:
9. A is the owner of two adjacent tracts of land, Blackacre and Whiteacre. Blackacre has on it a dwelling house. Whiteacre is unimproved. Drainage from the house to a public sewer is across Whiteacre. This fact is unknown to A who purchased the two tracts with the house already built. By reasonable effort, A might discover the manner of drainage and the location of the drain. A sells Blackacre to B who has been informed as to the manner of drainage and the location of the drain and assumes that A is aware of it. There is created by implication an easement of drainage in favor of B across Whiteacre.
10. Same facts as in Illustration 9, except that both A and B are unaware of the manner of drainage and the location of the drain. However, each had reasonable opportunity to learn of such facts. A holding that there is created by implication an easement of drainage in favor of B across Whiteacre is proper.
At the time John J. Jones purchased lot 19 he was aware of the lateral sewer, and knew that it was installed for the benefit of the lots owned by Mrs. Bailey, the common owner. The easement was necessary to the comfortable enjoyment of the grantor’s property. If land may be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied in favor of either the grantor or grantee on the basis of necessity alone. This is the situation as found by the trial court.
Neither can it be claimed that plaintiff purchased without notice. At the time plaintiff purchased the property he and his wife made a careful and thorough inspection of the property. They knew the house was equipped with modern plumbing and that the plumbing had to drain into a sewer. Under the facts as found by the court, we think the purchaser was charged with notice of the lateral sewer. It was an apparent easement as that term is used in the books. Wiesel v. Smira, 49 R.I. 246, 142 A. 148, 58 A.L.R. 818; 19 C.J. 868.
The author of the annotation on easements by implication in 58 A.L.R. at page 832, states the rule as follows: “While there is some conflict of authority as to whether existing drains, pipes, and sewers may be properly characterized as apparent, within the rule as to apparent or visible easements, the majority of the cases which have considered the question have taken the view that appearance and visibility are not synonymous, and that the fact that the pipe, sewer, or drain may be hidden underground does not negative its character as an apparent condition; at least, where the appliances connected with and leading to it are obvious.”
As we are clear that an easement by implication was created under the facts as found by the trial court, it is unnecessary to discuss the question of prescription.
The judgment is affirmed.
Harvey, J., concurs in the order of affirmance, but not in all that is said in the opinion.
Wedell, J., not sitting.