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Chaffee did not get possession of these plied reservation. On this precise question buildings until that time. Immediately the authorities are in conflict. Courts of thereafter he began tearing down the old high standing assert that the rule regarding buildings to prepare the lot for an opera implied grants and implied reservation of house. The chancellor reports that access "visible servitudes” is reciprocal, and that to the rear of the Howley block over the it applies with equal force and in like cirright of way to the Chaffee lot, and thence cumstances to both grants and reservations. around the corner of the south barn as But upon a careful consideration of the described, is—“reasonably necessary for the whole subject, studied in the light of the full, convenient, and comfortable use and many cases in which it is discussed, we are enjoyment of said block, and would add to convinced that there is a clear distinction the value of said block, and would material. between implied grants and implied reservaly benefit it.”
tions, and that this distinction is well The decree below was for the orator and founded in principle and well supported by against Chaffee only. The latter appealed. authority. It is apparent that no question The defendants treat the orator's suit as a of public policy is here involved, as we have claim of a way of necessity, so-called, and seen is the case where a way of necessity is rely upon Dee v. King, 73 Vt. 375, 50 Atl. involved. To say that grantor reserves to 1109, wherein it is said that such a way is himself something out of the property called into existence in cases of necessity granted, wholly by implication, not only ofonly, and that mere convenience, however | fends the rule that one shall not derogate great, will not suffice.
from his own grant, but conflicts with the For present purposes we may assume that grantor's language in the conveyance, which the rule regulating such ways is correctly by the rule is to be taken against him, and stated in Willey v. Thwing, 68 Vt. 128, 34 is wholly inconsistent with the theory on Atl. 428, in the following quotation: “If which our registry laws are based. If such conveys land to B, to which B can have ac- an illogical result is to follow an absolute cess only by passing over other land of A, a grant, it must be by virtue of some legal way of necessity passes by the grant. If A rule of compelling force. conveys land to B, leaving other land of A, The correct rule is, we think, that where, to which he can have access only by passing as here, one grants a parcel of land by metes over the land granted, a way of necessity is and bounds, by a deed containing full covereserved in the grant."
nants of warranty and without any express It thus appears that in the matter of reservation, there can be no reservation by these ways implied grants and implied reser- implication, unless the easement claimed is vations stand alike. The foundation of this one of “strict necessity,” within the meanrule regarding ways of necessity is said to ing of that term as explained in Dee v. be a fiction of law by which a grant or res. King, supra. ervation is implied to meet a special emer- While some of the older authorities at. gency, on grounds of public policy, in order tach to an implied reservation a less strict that no land be left inaccessible for the pur requirement of necessity than this, the deposes of cultivation. Buss v. Dyer, 125 cided tendency of the courts is toward the Mass. 291. It is apparent that the case more logical and sensible rule above stated. in hand has no standing under this rule, for Thus, after some divergence of judicial the orator's land fronts on one of the prin- opinion and consequent uncertainty in the cipal streets of the city, and is, of course, law, striet necessity has come to be the setaccessible therefrom. The claim of the ora- tled rule of implied reservations in England. tor is in fact founded upon a different, Suffield v. Brown, 4 De. G. J. & S. 187, 3 though somewhat related, ground,-a ground New Reports, 340, 33 L. J. Ch. N. S. 249, 10 sometimes spoken of in the books as the doc- Jur. N. S. 111, 9 L. T. N. S. 627, 12 Week. trine of "visible servitudes,” sometimes as Rep. 356; Wheeldon v. Burrows, L. R. 12 the doctrine of "easements arising from sev- | Ch. Div. 31, 48 L. J. Ch. N. S. 853, 41 L. T. erance with apparent benefit existing,” and N. S. 327, 28 Week. Rep. 196; Crossley v. sometimes as the doctrine of "quasi ease- Lightowler, L. R. 2 Ch. 478, 36 L. J. Ch. ments.” Much confusion of judicial thought N. S. 584, 16 L. T. N. S. 438, 15 Week. Rep. has resulted from a failure to distinguish 801. between ways of necessity and ways arising So, too, in New York, though it was forunder this latter doctrine,-a confusion, it merly thought (Lampman v. Milks, 21 N. Y. must be admitted, from which our own cases 505) that the rule of visible servitudes have not wholly escaped.
worked both ways, the distinction between With the character and extent of implied implied grants and implied reservations is grants, we now have nothing to do. We are now fully established, and it is held that an here only concerned with determining the implied reservation only arises when the circumstances which will give rise to an im- 'easement claimed is necessary in the strict sense of the term. Hill v. Bernheimer, 78 | but has existed almost as far back as the Misc. 472, 140 N. Y. Supp. 35; Lathrop v. law upon the subject can be traced," reaches Lytle, $4 Misc. 161, 145 N. Y. Supp. 906; the conclusion that no implied right in the Wells v. Garbutt, 132 N. Y. 430, 30 N. E. alley was reserved in the first sale, as use of 978; Paine v. Chandler, 134 N. Y. 385, 19 the alley was not legally necessary to the L.R.A. 99, 32 N E. 18.
other house. This rule is approved in Burns It was said in Carbrey v. Willis, 7 Allen, v. Gallagher, 62 Md. 462; Jay v. Michael, 92 364, 83 Am. Dec. 688, that "where there is a Md. 210, 48 Atl. 61, and Mancuso v. Riddlegrant of land by metes and bounds, without moser Co. 117 Md. 53, 82 Atl. 1051, Ann. express reservation and with full covenants Cas. 1914A, 84. of warranty against encumbrances, we think In Cherry v. Brizzolara, 89 Ark. 309, 21 there is no just reason for holding that L.R.A. (N.S.) 508, 116 S. W. 668, the disthere can be any reservation by implication, tinction is recognized and the rule stated unless the easement is strictly one of neces- thus: “But there is a marked difference besity. Where the easement is only one of tween an implied grant and an implied res. existing use and great convenience, but for ervation of an easement in the conveyance which a substitute can be furnished by rea of the dominant and servient estate. Where sonable labor and expense, the grantor may a man grants the dominant estate, he grants certainly cut himself off from it by his deed, with it everything necessary to its enjoyif such is the intention of the parties. And ment; and by the grant there passes by imit is difficult to see how such an intention plication to the grantee all those continuous could be more clearly and distinctly inti- j and apparent easements which are necessary mated than by such a deed and warranty.” | to the reasonable enjoyment of the property
It should be noted in this connection that granted, and which have been, and are at the the Massachusetts court applies the rule of time of the grant, used by the owner of the strict necessity to grants as well as reserva entirety for the benefit of the part granted. tions. Buss v. Dyer, 125 Mass. 289.
But where the owner has sold and The Massachusetts rule prevails in Maine. granted the servient estate and attempts to In Warren v. Blake, 54 Me. 276, 89 Am. Dec. retain by implied reservation the easement 748, the court quotes and adopts the rule of for the estate he retains, the matter stands Carbrey v. Willis, as above, suggesting that on a different footing. The grant is taken to hold otherwise would open the door “to most strongly against the grantor. doubt and uncertainty, to the disturbance And so the [great] weight of authority is and questioning of titles, and to controver- that where there is a grant of land with full sies as to matters of fact outside of the lan covenants of warranty, and without express guage or boundaries of the deed." This reservation of easement, there can be no res. holding was approved as settled law in Ste-ervation by implication, unless the easement vens v. Orr, 69 Me. 323. See also Stillwell is strictly one of absolute necessity.” v. Foster, 80 Me. 333, 14 Atl. 731.
Other cases recognizing this distinction Mitchell v. Seipel, 53 Md. 251, 36 Am. between grants and reservations are Walker Rep. 404, is a well-considered and instruc- v. Clifford, 128 Ala. 67, 86 Am. St. Rep. 74, tive case in point. The owner of a lot built 29 So. 588; Brown v. Fuller, 165 Mich. 162, two houses on it. One was 15 feet wide; the 33 L.R.A. (N.S.) 459, 130 N. W. 621, Ann. other was 124 feet wide on the ground, but Cas. 1912C, 853; Toothe v. Bryce, 50 N. J. 15 feet wide above the first story. This left Eq. 589, 25 Atl. 182; Denman v. Mentz, 63 between the houses an alley 24 feet wide, ex. N. J. Eq. 613, 52 Atl. 1117; Wilson v. Riggs, tending from the street to the back yards of 27 App. D. C. 550; Crosland v. Rogers, 32 the houses. Above the alley the timbers of S. C. 130, 10 S. E. 874; Scott v. Beutel, 23 the narrow house extended across the alley Gratt. 1. and rested on the wall of the other house. The doctrine of visible servitudes is not The alley was used as a common passage new in this state. It was in Harwood v. way by the occupants of both houses. The Benton, 32 Vt. 724, that was first recog. narrow house was sold by a deed which in- nized by this court. Judge Barrett therein cluded the alley, but without any reserva- calls attention to the rule that, while an tion of any right therein. Then the other owner of a parcel of land could not have an house was sold by a deed embracing no part easement in one part in favor of another of the alley. The court reviews the cases, part thereof, yet, by force of his ownership, English and American, and, "being satisfied he could use it as he pleased and impress it the distinction so clearly drawn in those de- with such conditions as he chose, which upon cisions between what has been called an im- severance would survive. And it was acplied grant and what has been attempted to cordingly there held that the parcel of land be established under the name of an implied sold was subject to the seller's right to reservation is not only founded in reason, maintain his mill pond on the part reserved, though he thereby interfered with the full strict necessity. Both doctrines herein disenjoyment of the premises conveyed. cussed were referred to in the opinion, but
The subject has been before the court in no attempt was made to define the degree of various cases since, including Coolidge v. necessity required in visible servitudes reHager, 43 Vt. 9, 5 Am. Rep. 256; Goodall v. served by implication. Godfrey, 53 Vt. 219, 38 Am. Rep. 671; Wis- We find, no binding precedent in this well v. Minogue, 57 Vt. 616; Willey v. state to embarrass us in the adoption of the Thwing, 68 Vt. 128, 34 Atl. 428; McElroy rule of the best considered cases hereinbefore v. McLeay, 71 Vt. 396, 45 Atl. 898; and Dee v. stated. Indeed, the very distinction which King, 77 Vt. 230, 68 L.I.A. 860, 59 Atl. 839. we now adopt was referred to in Goodall v. Of these cases Harwood v. Benton and Wis- Godfrey, 53 Vt. 219, 38 Am. Rep. 671, with well v. Minogue and Willey v. Thwing were, a very broad intimation that it was sound alone, cases of implied reservations, which in law. For Judge Veazey said in the opinneed be noticed in this discussion. It was ion that if the owner of the property had in said in the former, in speaking of Gale & his lifetime divided it, and then “sold the Whatley on Easements, that the learned au- east and west tenements to the plaintiff thors show that in this class of cases: without reservation of a right of way for the “While the law will make all necessary im- middle tenement, then it might be argued, plications to prevent the grantor from dero- upon strong authority, that he did not regating from his own grant, it will recipro- tain such right of way by implication. . cally and equally make like implications to Although it may have been held that there prevent the grantor irom being shorn of his is no distinction in legal effect between what just rights in reference to the property has been called an implied grant and an imwhich he retains."
plied reservation, such a distinction has So far as the opinion may be taken as an been recognized in many well-considered indorsement of this statement, it was a pure cases.
This distinction is only aldictum, for it was wholly unnecessary to the luded to, not passed upon.” decision. The case then before the court was It is a fair assumption from this language manifestly one in which the easement re that the court did not then understand served was one of strict necessity,—for a that the distinction had ever been passed mill without a mill pond would be wholly upon in this state up to that time. useless, and no substitute could be provided. In this state of the law of the subject in So this statement that the law would recip- this jurisdiction, we do not hesitate to put rocally and equally imply a reservation in ourselves in line with the modern holdings. favor of the grantor was outside the deci- That the way here in question is not necsion.
essary to the Howley block in the strict Again, in Wiswell v. Minogue, it is said sense of the term is apparent. The finding that “it is now universally recognized that, is that it “is reasonably necessary for the from the necessity of a right of way to the full, convenient, and comfortable use and enreasonable and enjoyment of land joyment" of the block. This is not enough granted or reserved, is to be found an im- under the rule herein adopted. It is apparplied grant or reservation of such right, in ent that the way is highly convenient, but it the absence of some express negation thereof is not indispensable. For aught that apin the deed."
pears a substitute through the stores can be Here again the court, as the opinion says, prepared without unreasonable trouble or was discussing a case wherein the easements expense. It may be safely said that it apwere of strict necessity. When the farm was pears that this can be done. At any rate, first sold a landlocked quarry was reserved, whatever inconvenience may result-what-a typical case of a way of necessity by ever detriment to the Howley block may folimplied reservation. When the 31-acre piece low this decision,-it is attributable to the was conveyed to the quarry owner, the ease-deliberate act of Mrs. Richardson, who could ment claimed was not reserved, but granted. have (had she so desired or intended) avertAnd this, too, was a plain way of necessity, ed it all by a stroke of her pen when she as the case shows that the quarry owner, deeded to Chaffee. In reaching this result, even after the purchase of the 34-acre piece, we make no reference to several special cirhad no other way out to the highway except cumstances tending strongly to show that over the way claimed. So no reference to Mrs. Richardson had, in fact, no idea that the doctrine of visible servitudes was this way was to be kept open after the Chafquired, and the quotation above was wholly fee deed was given. obiter.
Decree reversed, and cause remanded, with Willey v. Thwing was apparently a way of directions to dismiss the bill.
WASHINGTON SUPREME COURT. the building, and entered the building at (Department No. 2.)
an unusual hour and took articles there.
from at a time different from that charged STATE OF WASHINGTON, Respt.,
in the indictment.
Burglary opening building with key JOHN CORCORAN, Appt.
2. An employee's opening a building at
a time when his duties did not require him (82 Wash. 44, 143 Pac. 453.)
to do so, by means of a key furnished him
by the employer for the limited purpose of Evidence intent of one charged with opening the store for business in the mornburglary - conduct.
ing, followed by his taking property of his 1. To show intent of an employee charged employer therefrom with intent to convert with burglary of his employer's store, evi: it to his own use, is a sufficient breaking to dence is admissible that he padded the in- constitute burglary. ventory, concealed articles about his work bench which were subsequently taken from
(October 8, 1914.) Note. - Bu ry: breaking as affected this manner is within his trust, and so
by defendant's authority to enter no breaking of the house, and therefore building.
not within the law of burglary; but if the
servant breaks open a door, whether outWith the exception of the Texas cases ward or inward (as for the purpose a which are governed by special statute, the closet, study, or counting house), and steals cases in point divide themselves into two goods, this is a robbery and breaking the classes, namely, those in which, as in STATE house, -such opening not being within his V. CORCORAN, the decision turns on wheth- trust. 2 Hale, P. C. 354. But it is pointer there was an unlimited and unrestricted ed out in Russell on Crimes, vol. 2, p. 10, right of entry, and those in which the de- note, that this view was in conflict with the cision turns on the intent of the employee Edmonds Case, supra. at the time of entry, the entry itself being But in State v. Howard, 64 S. C. 344, with right.
58 L.R.A. 685, 92 Am. St. Rep. 804, 43 S. In Pointer v. State, 148 Ala. 676, 41 So. E. 173, it was held that a servant having 929, holding that a servant in a hotel who a right to lodge in his master's house is has a right of access to a pantry in the guilty of burglary if he opens a closed door performance of his menial duties as servant or raises a sash and enters the building, is nevertheless guilty of burglary if, after not for the purpose of using the same as the pantry is locked for the night, he enters a lodging house, but with intent to steal the same and steals provisions therefrom, his master's goods. The court said: "A the entry, in view of the time it was made, servant's right to enter his master's dwellwas apparently wrongful irrespective of its ing depends upon the purpose with which purpose.
he enters. If he enters pursuant to the That was also apparently true of Hild v. trust of his employment, being rightfully State, 67 Ala. 39, holding that a servant in in, if he then conceives the felonious purcharge of a house during his employer's pose, and attempts to carry it out without absence is guilty of burglary if without breaking any inner door, it is not burglary, right he enters a closed room and steals for there is no breaking and entering with therefrom.
felonious intent; but if, being out of the In Rex v. Gray, 1 Strange, 481, it was dwelling, he does that which would conheld to be burglary where a servant with stitute a breaking and entering in a strangdesign to commit rape opened the door of his ' er, and does it with the intent to steal or mistress's room, which was fastened with commit a felony, or if, being in without a bolt.
breaking, he breaks an inner door with So, also, for a servant at night to unlatch such purpose, then he commits burglary, for the door of his master's or mistress's bed- the entrance for such purpose is in violaroom for purpose of committing murder. tion of his trust and employment.” Edmonds Case, Hutton, 20 J. Kelyng, 67; So, in Lowder v. State, 63 Ala. 143, 35 United States v. Bowen, 4 Cranch, 604, Fed. Am. Rep. 9, the court holds that an office Cas. No. 14,629.
boy and servant of an attorney who goes In STATE V. CORCORAN the court seems into the office at nighttime for the purpose to have assumed, although it was not neces- of going to bed, and has the right to do sary to pass upon the point, that if the de- so from his employers, or is accustomed fendant had had the right to enter the to sleep there at night with their knowlstore at any time of the day or night, hei edge, and without objection, is not guilty would not have been guilty of burglary even of burglary though, after entering the ofif the entry upon the particular occasion fice for that purpose only, he forms the dewas with the preconceived intention to steal. sire to steal his employer's money, which
And this seems to have been the view of is in a bedroom off the office; it is clearly Sir Mathew Hale, who said that if the serv- implied that he would be guilty if the entry ant unlatches a door, or turns a key in a were with the preconcetved intent to steal, door, in the house, and steals goods out although not otherwise wrongful. of that room, the opening of the door in In Colbert v. State, 91 Ga. 705, 17 S. E.
PPEAL by defendant from a judgment against the person accused of a particular
of the Superior Court for Spokane crime, is not admissible. County convicting him of burglary in the State v. Cottrell, 56 Wash. 544, 106 Pac. second degree. Affirmed.
179; Lowman v. State, 109 Ga. 501, 34 S. E. The facts are stated in the opinion. 1019, 13 Am. Crim. Rep. 389; People v.
Mr. George H. Armitage, with Mr. W. Geyer, 196 N. Y. 364, 90 N. E. 48; Jordan C. Donovan, for appellant:
v. Osgood, 109 Mass. 457, 12 Am. Rep. 731 ; Evidence of other distinct criminal acts State v. Gottfreedson, 24 Wash. 398, 64 Pac. cannot be introduced against the accused to 523; Underhill, Crim. Ev. 8th ed. § 88, prove him guilty of the crime on the charge p. 160. of which he is on trial,
A motive for committing a crime is admisState v. Bokien, 14 Wash. 403, 44 Pac. sible only where it is necessary to prove the 889; State v. Oppenheimer, 41 Wash. 630, defendant's connection with the commission 84 Pac. 588; Collier v. State, Miss. 64 of a crime apparently committed by someone So. 373; Lightfoot v. People, 16 Mich. 507. by proof of the corpus delicti.
Evidence of other offenses not amounting Shaffner v. Com. 72 Pa. 60, 13 Am. Rep. to crimes and misdemeanors, the admission 619; People v. Molineux, 62 L.R.A. 193, and of which is calculated to prejudice the jury note, 168 N. Y. 204, 61 N. E. 286. 840, where a servant unlocked a door of a , is not the servant of a saloon in the same room and took certain articles therefrom, building and under the same management, the court said that if the intent to steal and in which he performs no duty whatwas formed after he entered, his offense i ever, so as to necessitate an actual breakwas only larceny from the house; but if | ing in order to constitute burglary where the intent to steal was formed before en- an entry is made by a domestic servant, and tering, his offense was burglary. It is not so such a servant who enters the saloon and clear, however, but that the latter alterna- steals therefrom is guilty of burglary, altive was upon the hypothesis that the en though actual force is not used, but entry try was wrongful irrespective of its purpose. is made by means of unlocking the door.
As stated, the Texas cases are governed Jackson v. State, 43 Tex. Crim. Rep. 260, by a statute that provides that an entry | 64 S. W. 864. into a house for the purpose of committing And a lifting of the latch and opening a theft, unless the same is effected by actual a door do not constitute an actual breakbreaking, is not burglary when the same is ing, within the meaning of the statute. done by a domestic servant or other inhabi. Neiderluck v. State, 23 Tex. App. 38, 3 S. tant of such house, and the question in- W. 573. volved generally is whether one is a do- But where a domestic servant, in purmestic servant or inhabitant within the suance of a conspiracy with others who are meaning of the statute.
not servants, lifts the latch and opens the In construing the terms "domestic serv- door and enters the house, he is guilty of ant or other inhabitant of such house,” the burglary though the breaking be not actual. court in Wakefield v. State, 41 Tex. 556, said Ibid. that they did not extend to a servant whose employment is out of doors, and not in the
Entry of place open for business. house, or to a lodger or visitor, as distinguished from an inhabitant, and they do not Under a California statute which provides therefore come within the classification of a that "every person who enters any house, domestic servant or an inhabitant of the room, store,
with intent to commit house.
grand or petit larceny or any felony, is guil. So, an entry into a house and a theft ty of burglary," one who with intent to steal therefrom by a servant of a guest of a house, enters a store is guilty of burglary though who had access to the house for the pur- it be during business hours. People v. pose of getting property of his master, con- Brittain, 142 Cal. 8, 100 Am. St. Rep. 95, stitute burglary. Ibid.
75 Pac. 314; People v. Barry, 94 Cal. 481, And a farm hand who does not sleep or 29 Pac. 1026. eat in his employer's house, and who has It was contended in the Barry Case that only occasional duties to perform in the a store during business hours is a public house, such as making fires and carrying place, and that the defendant as one of the water, is not a domestic servant of the public had a legal right to be there or owner of the house so as to require that rather to enter there; that the proprietors there shall be an actual breaking to con- doing business with the general stitute burglary by such a one, and so he public; the public were invited to enwill be guilty of burglary if he enters the ter, and that therefore the defendant enhouse not in the performance of such occa- tered under an invitation of the owners, and sional duties and steals articles therefrom. that consequently his entry was lawful, and Waterhouse v. State, 21 Tex. App. 663, 2 therefore there could be no burglary when S. W. 889.
there is a lawful entry. But the court So, also, a servant of a hotel whose sole said that to this line of reasoning it could duties are to scour the floors of the corri- only say that a party who enters with the dors of the hotel and clean the spittoons'intention to commit a felony enters without