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COOPER, J. In the year 1849 one Emanuel became the owner of a part of square 258 in the city of Vicksburg, which square is bounded on the east by Wasliington street, and on the north by Grove street. His lot fronted on Washington street, and extended back 103 feet on Grove street. On this lot he erected two store-houses, each fronting on Washington street, and extend. ing back 88 feet, leaving a vacant space in rear of the buildings of 15 feet. The declivity from Washington street westward is so great that what is the basement of the buildings in front is above ground, forming the lower story in rear. The buildings are therefore three stories in rear, and two stories and a basement in front. One of these buildings extended along Grove street, and there was a door in the side, opening out on Grove street, by which access was had to the lower story or ceilar. This is designated as lot “No. 91” in the pleadings and evidence. In the rear of the other building, (No. 93,) there was a door in rear leading from the first floor to the vacant space. In front there was in each building a stairway leading to the basement. The two buildings had one common wall. In 1859, Emanuel made contemporaneous conveyances,--one to Duff, Green & Co. of lot 93; the other to Cobb, Manlove & Co. of lot 91. The conveyances were of the lots by metes and bounds, describing the land on which the respective buildings stood, and the vacant space in rear of each, granting to each purchaser the lot and its “appurtenances."
Cobb, Manlove & Co. believed that, by reason of the situation of the lot conveyed to Duff, Green & Co., its owners had a right of way across lot 91 to reach Grove street; and Duff, Green & Co., being under the same impression, exercised the privilege of passing across said lot so long as the two firms occupied the buildings. In 1859 or 1860, each firm desiring to enlarge its building, the second and third stories were extended back to the rear of the lot, but an archway was cut in the wall of building 91, where the vacant space opened out on Grove street, and a corresponding arch was also cut in the partition wall, the lower story not being extended in either building. Duff, Green & Co. still had access to the first or cellar floor, by driving drays, etc., through the archways, to the rear of their building. In 1863 lot 91 was bought by one Barbour, who was examined as a witness, and testified that at that time Duff, Green & Co., having engaged in a business that did not require the use of the cellar, made no attempt to use the way across lot 91, and that they set up no claim to a right to do so. Some time after this purchase and occupancy by Barbour he built a stable in the alley-way on his lot; the arched way on Grove street being used as the doorway to his stable. Things remained in this condition until 1871, when, another occupant having moved into lot 93 with whom Barbour was not on friendly terms, he closed up the archway in the partition walls by nailing plank across the same. After this the appellant Bonelli became tenant of both buildings, and tore out the stable erected by Barbour, and built another one, which was partly on lot 91 and partly on lot 93. Bonelli has now become the owner of lot 91, and bas torn down the stable erected on both lots by himself, and nailed up the archway in the partition wall. Complainants, who are the owners of lot 93, exhibited the bill in this cause to enjoin him from obstructing the way which they claim to have across lot 91 to Grove street.
There is no distinct averment in the bill that the way claimed ever was used by Emanuel during his ownership of the property; but since a decision against complainants on this ground would probably result in an amendment of their bill, and since in any event they are not entitled to the relief asked, we deal with the cause as though the allegation of such use had been specifically made.
Complainants contend that a right of way exists, first, by implied grant in the conveyance from the common owner to Duff, Green & Co.; or, if this point be decided against them, then that Dutf, Green & Co., under whom they claim, secured the right by parol from Cobb, Manlove & Co.; and, if mistaken in this, then they claim that the right has been acquired by prescription.
The second and third propositions may be disposed of in a word. A way is an incorporeal hereditament, and, since livery of seisin could not have been made of it at common law, it could only be created by deed or other writing. It is therefore said to lie in grant. Greenl. Cruise, tit. “Deed,” c. 4, SS 35, 36. But a right of way is an interest in lands, and a grant by parol is obnoxious to the statute of frauds. Thompson v. Gregory, 4 Jobns. 81; Richter v. Irwin, 28 Ind. 27; Hall v. McLeod, 2 Metc. (Ky.) 98; Kerr, Fraud & M. 718.
The authorities cited by counsel for appellees are cases of dedication of public ways, and rest upon the doctrine of estoppel in pais. They are not required to be in writing. The evidence does not support the claim of a way by prescription. It does not appear that the right was exercised for an uninterrupted period of 10 years at any time.
The proposition most confidently advanced by appellees is that the way passed to Duff, Green & Co., either as part of the land conveyed, or as a necessary incident thereto by implied grant, or that it passed by use of the word "appurtenances" in the deed. The use of the word “appurtenances” adds nothing to the force or effect of the deed. Emanuel was the owner of the whole property, and as owner exercised the right of passing across one part in use of the other; but the right was not an easement appurtenant to the land, for no man can have an easement on his own property. If Emanuel, as owner of this property, had also enjoyed a right to pass over the property of another person, such right would have been an easement, and would have passed by the grant of the property and its appurtenances. But the use of that word, proper to convey an easement already existing, is not sufficient to evidence a purpose to create an eisement where none existed before. If by the conveyance to Duff, Green & Co. an easement was granted at all over the other lot, it must be implied from the general grant, and not from the use of the word “appurtenances.” Whalley v. Tompson, 1 Bos. & P. 375; Oliver v. Hook, 47 Md. 301; Guyetty v. Bethune, 14 Mass. 49; Parsons v. Johnson, 68 N. Y. 62.
The principle from which the doctrine of implied grants of easements over other lands of the grantor springs, is said to be found in the maxim that “one shall not derogate from his grant,” and the kindred one that the purchaser takes the land bought, and whatever right in the lands of the grantor necessary to its enjoyment. If one sells to another a tract of land surrounded by other lands of the grantor, a right of way across such other land is a necessity to the enjoyment of the land granted, and is implied froin the grant made; and to this extent are all the authorities. So where a conveyance is made of real estate by designation, and not by metes and bounds, as "the manor of A.," or as Blackacre, or where property devoted to a trade or business, as a “mill" or “tanyard,” is conveyed by words describing the property as such, other land than that covered by the buildings or curtilage, that by its use has become essential to the enjoyment or use of the buildings, passes to the grantee. But land cannot be appurtenant to land, and such other lands pass, not as appurtenant or incident to the thing granted, but as a parcel of the thing itself.
In the case of a way by necessity, it is implied as an incident to the thing granted. Where the conveyance is of the land by designation, not by metes and bounds, the connected lands pass, not strictly by implied grant, but as included as a part of the thing expressly granted. The authorities run in an almost unbroken current in support of the right of the grantee under the above-named circumstances, but some diversity is encountered when we pass into the tield of implied grants of things not necessary, (strictly necessary, ) but only highly convenient or essential, to the full enjoyment of the land
bought. The owner of a tract of land, a part of which he afterwards grants to another, has not, of course, an easement in any part of his land while he owns the whole. He deals with it as owner, and may subserve any portion to the use of the other, and may change the arrangement at his will. It is only where such arrangement is apparently permanent, and intended so to be, and while so remaining the other grants a part of the premises, that the question of easement or servitude can arise. The condition of the whole when the severance is made; the nature of the easement claimed to be granted or reserved by implication; its obviousness and continuousness, -are the tests usually applied to determine the existence or non-existence of the grant of reservation. The rule seems to be of very general recognition that an easement not of strict pecessity does not pass by implied grant, unless it be apparently permanent, obvious, and continuous. The word "continuous," in the sense here used, seems to have acquired a somewhat unusual signification, within the meaning of the rule. It is not sufficient that the thing may be continuously subject to use or enjoyment, but that it may be used without the intervention of the act of man. A continuous easement is one, say the authorities, which may be enjoyed without any act on bis part; as a water spout which discharges the water whenever it rains, a drain by which surface water is carried over land, windows through which light and air enter, etc. A non-continuous easement is one to the enjoyment of which the act of the party is essential, and of this class a way is the most usual. Lampman v. Milks, 21 N. Y. 505; Polden v. Bastard, 1 L. R. Q. B. 156; Tool Co. v. Steam Co.,9 R. I. 564; Elliott v. Rhett, 5 Rich. Law, 405; Denton v. Leddell, 23 N. J. Eg. 64; note to Elliott v. Rhett, 57 Amer. Dec. 750.
The decided weight of authority, both English and American, is to the effect that an easement not of strict necessity will not pass by implied grant, unless it be apparent and continuous. Whalley v. Tompson, 1 Bos. & P. 371; Pheysey v. Vicary, 16 Mees. & W. 484; Oliter v. Hook, 47 Md. 302; Fetters v. Humphreys, 19 N. J. Eq. 472; God. Easem.; and cases cited above. In Pennsylvania, a way fenced out and devoted exclusively to purposes of travel seems to be treated as a continuous easement, (Phillips v. Phillips, 48 Pa. St. 178;) and an alley-way, (McCarty v. Kitchenman, 47 Pa. St. 239.) It is probable, however, that in that state the decisions go further, and establish the rule that a way commonly and usually used, and highly convenient, would pass by implied grant. Railroad Co. V. Jones, 50 Pa. St. 417. It was also suggested in Watts V. Kelson, L. R. 6 Ch. 166, that a paved way might pass by implied grant. In U.S. v. Appleton, 1 Sum. 492, Judge Story, not adverting to the distinction between continuous and non-continuous easements, held that where a window opening upon a porch bad been in use as a way by the grantor across the porch to the street an easement passed by implied grant, not only to light and air, but to the way across the porch. The authorities relied on by him are cases in which continuous easements had been held to pass. It may be noted that the cases cited by him from Massachusetts have been practically overruled in that state by subsequent cases. The law seems to be in that state now that no easement, whether continuous or non-continuous, will pass by implied grant, unless it be one of necessity. Keats v. Hugo, 115 Mass. 204. Since the way claimed by complainants is not one of necessity, and is not of a continuous nature, it did not pass by the conveyance to Duff, Green & Co., and of course has not been acquired by any of the subsequent conveyances under which complainants derive title.
The complainants are therefore not entitled to the relief sought, wherefore the decree is reversed, and bill dismissed.
METCALFE 0. PERRY et al.
(Supreme Court of Mississippi. December 3, 1888.) 1. TAXATION--Tax TITLES-BILL OF CONFIRMATION-INFANCY.
Under Code Miss. 1880, $ 578, giving the holder of a tax title a right to bring a bill for its confirmation," when the period for redemption has expired, "such a bill may be brought against infants interested in the land, without waiting until expiration of
the period of redemption after their disability is removed. 2. SAME-SALE TO LEVEE BOARD.
Under such section, a suit may be brought to confirm a tax title acquired at a
sale for taxes to the levee board. 3. EQUITY-BILL TO SET ASIDE DECREE-LACHES.
A decree confirming a tax title cannot be reopened after expiration of the period for appeal, oroill of review, on the ground that complainants were not made par. ties to the suit for confirmation, and had no knowledge thereof, where their bill does not allege payment of taxes by them, except for the year for which the land was sold, and intimates that defendant is in possession; thus not showing that
their ignorance of the former suit was excusable. 4. TAXATION—Tax Sales-REDEMPTION,
Acts Miss. 1859-60, p. 213, $ 7, to provide for the better security of tax titles, and barring suit to redeem after five years, does not apply to a sale for taxes where the taxes are paid before the sale. Appeal from chancery court, Washington county; W. R. TRIGG, Chancellor.
In 1869, the land in controversy was sold for taxes, and bought by the levee board, and afterwards the title of the levee board became vested in the appellant, Mrs. Metcalfe. After the time for redemption had expired, Mrs. Metcalfe filed a bill under Code Miss. 1880, $ 578, to confirm her tax title. No owner appearing to contest, there was a decree in her favor, and her title was confirmed. The present bill was filed by the appellees, A. H. Perry and others, as heirs of one Hale, who died in 1864; the youngest of the complainants having arrived at majority more than three years before this bill was filed. They allege that the land was sold when no taxes were due; that they knew nothing of Mrs. Metcalfe's title, or the decree confirming the same, until a short time before filing their bill; and they pray a vacation of the decree confirming her title. Mrs. Metcalfe demurred, relying on the statute of 1860, which allowed five years in which to redeem, after which suit therefor was barred, to sustain her tax title, and relying on the three-years statute of limitations (it having been more than three years after the majority of the youngest claimant before the bill was filed) as a bar to overturning the decree of confirmation in her favor. The demurrer was overruled, and Mrs. Metcalfe appeals.
W. P. & J.B. Harris and Yerger & Percy, for appellant. Phelps & Skinner and Clark & Sillers, for appellees.
CAMPBELL, J. Section 7 of “An act to provide for the better security of titles to lands held and claimed under tax sale and tax titles," approved February 10, 1860, (Acts 1859–60, p. 213,) was not intended to bar a suit to set aside a title acquired under such sale, unless brought within five years from the date of the sale, where the taxes had been paid before the sale. It applies only to sales for non-payment of taxes “due" and unpaid. That is its language, and the right of redemption is expressly recognized and saved by it, which shows clearly that the purpose was to deal with cases of sales for delinquency; for there cannot be a contemplation of redemption where nothing is due when a sale is made. The right to sell land cannot arise if the taxes assessed are duly paid. Delinquency is as essential a prerequisite of the power to sell land for taxes as an assessment or levy of taxes, and he who has paid all the taxes assessed on his property need not concern himself about a sale of it for taxes. The legislature has not attempted to affect the rights of the owner who has performed his duty by meeting the public charge imposed on his property. Its effort has been to reach the delinquent, who deserves no favor, and cannot justly complain of a reasonable bar to the assertion of his claim to question the validity of a tax sale for taxes due and not paid. We are not called on now to declare that the legislature could not, by mere lapse of time, cut off the right of the owner, who has paid all taxes “due” on his land, to question the validity of a sale of it for taxes, for we are satisfied that no such purpose was entertained by the legislature. Therefore the averment of the bill that the taxes had been paid, and that the land was sold for taxes when none were due, is sufficient to prevent the application of the act cited to this case.
Was the decree of Octobei 14, 1882, "null and void, so far as complainants are concerned,” because of the facts set forth in the bill? Was the bill of appellant to confirm the tax title she had acquired prematurely exhibited, and is the decree merely brutum fulmen as to these complainants, who were infants at the time, and whose right of redemption had not then expired? Section 578 of the Code of 1880 (a copy of section 1753 of the Code of 1871, which was a substantial re-enactment of the act of February 10, 1860, cited above) gives the right to the holder of a tax title to exhibit a bill for its confirmation, when the period for redemption has expired,” and the claim of the appellees is that, as their right to redeem had not expired, the bill of appellant was premature, and the decree void. In our opinion, “the period for redemption" meant by the statute is the general period applicable to the whole community, and not the exceptional and special period applicable to that very small class composed of those under the disability of infancy or want of sanity, and that the rights of this class are sufficiently conserved by the right to redeem, after the removal of their disabilities, which is secured to them; and that a bill may be properly exbibited to confirm a tax title, without delaying for the time required to remove the disability of any person interested. There is no express mention of infants or insane in the statute, but its language is broad enough to give the right to the proceeding against all persons interested in the land, without exception, and it consists with the legislative scheme to insure the collection of taxes to permit the proceeding as to all persons. The effort of the legislature, for many years past, has been to compel the payment of the taxes due upon land, and, if not paid, to induce individuals to purchase delinquent lands when sold for the taxes. Besides the several other provisions on the subject, having this object in view, is the riglit of the holder of a tax title “to proceed by bill in the chancery court of the county in which the land lies to have such title confirmed and quieted,” conferred by section 578 of the Code.
There is no reason why such a bill may not be exhibited against infants as well as adults. The rights of infants may safely be committed to the courts, by which they are carefully guarded, and it cannot be assumed that it was intended to limit the right of holders of tax titles to proceed by bill to cases in which infants were not interested. Such an interpretation of the act would lessen its value, and tend to defeat its manifest purpose. Nor is such interpretation required by the interests of infants, whose rights are jealously guarded by the courts, and who are allowed time after coming of age to show cause against a decree for the sale or conveyance of their lands, except in certain cases. The right of infants to redeem land sold for taxes, after attaining their majority,
unaffected by such proceeding, but in all else it is to have the same effect as to them as any other proceeding to which they may be parties in chancery courts.
It results from this view that the proceeding by the appellant to confirm the tax title was not premature, and the decree was not void on that ground.
The other ground of attack on the decree is the allegation of the bill that the appellant, complainant in the suit to confirm, had knowledge of the own