Wagner v. Hanna
Before: Crockett, Rhodes
Synopsis
Easement—Conveyance—Constbuction of.—When the owner of a tract of land sells one-half of it, reserving a right of way across it, and in the same deed grants to the vendee a right of way across the unsold half, these rights arc not annexed to, or appurtenant to the respective tracts, and do not pass with the title. Whether the grant of a right of way he in gross, or appurtenant to some other estate, must he determined from the grant itself, and not by matters aliunde. Ceockett, J., dissenting.
Easement and Right of Way in Gboss.—The principal distinction between an easement and a right of way in gross, is, that in the first there is, and in the second there is not, a dominant tenement.
Easement.—The grant of an easement is always made for the benefit of other premises, which are described in the grant.
Easement—Statute of Eeauds.—A right of way is an interest in lands, to he conveyed only by an instrument in writing, which must describe the interest conveyed. If it is appurtenant to another tract, it must he so described, together with the tract of land to which it is appurtenant.
Easement. —If there he two tracts of land, in one of which the owner or vendor reserves, and in the other grants a right of way, each becomes the dominant tract in respect to the right of way secured across the other. Pei- Ceockett, J.
Opinion — Rhodes
Rhodes, J., delivered the opinion of the Court: In the first count of the complaint, it is alleged that Wolfle, who was the owner of a certain tract of land, conveyed the easterly portion thereof to Carter; that, in and by the deed of conveyance, Wolfle “ reserved to himself the privilege, free use and right of way through the premises conveyed by said last mentioned deed, and described therein, to the embarcadero on said Santa Margarita creek, which right of way, reserved as aforesaid, thereby became, and was and is appurtenant to the remaining portion of the premises hereinbefore described, and the premises so conveyed by said Wolfle to said Carter thereby became, and was and is subject to the said right of way.” There is no other allegation in that count showing, or more fully stating, the origin of the right of way over the land conveyed to Carter. The defendant [116]succeeded to Carter’s title, and the plaintiff is the owner of the westerly portion of the tract of land. It is claimed by the plaintiff that the reservation of the right- of way over the easterly portion of the tract—the land conveyed to Carter— created an easement, which became appurtenant to the westerly portion of the tract—the land retained by Wolfle—and that the easement passed with the land, under the deed of conveyance of Wolfle to the plaintiff. On the other side, it is contended that the right of way was only a right in gross, which was personal to Wolfle, and, therefore, not transferable.
An easement may be created by grant, or it may be acquired by prescription. The grant may be either express or implied. A reservation of an easement in the deed by which the lands are conveyed is equivalent, for the purpose of the creation of the easement, to an express grant of the easement by the grantee of the lands. There is nothing in the first count going to show a grant of the easement by implication ; and the question is, whether the terms of the deed, as therein alleged, show an express grant. The only allegation of a grant is that already quoted: that Wolfle “reserved to himself the privilege, free use and right of way through the premises conveyed, ” to the embarcadero. The averments following this: that thereby the right of way so reserved became appurtenant to the premises reserved by Wolfle, and that, thereby, the premises conveyed to Carter became subject to said right of way—are not the averment of facts, but of conclusions of law.
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