Millson v. Laughlin

Hornby, J.,

filed the following concurring opinion.

In this case—which involves the right to relocate a pole and electric line of which there was no grant unless it is implied, and the abandonment of one of two rights of way (one an old winding road or way and the other a new 30-foot road or way)—a majority of the Court has ruled: (i) that the plaintiff [Raughlin] has a right to relocate the pole and electric line—which the Court has further ruled is a quasi-easement above and across the property of the plaintiff—impliedly *590granted to the defendant [Millson] by the deed to her from a common grantor who formerly owned the properties of both parties; and (ii) that the defendant is estopped to revive the easement over the old winding road which she had abandoned when she never used it after acquiescing in the construction of the new and straighter road within the 30-foot way. I agree that the ruling with respect to the abandonment of the old winding road is correct, but I cannot agree that the pole and electric line is an easement, or, if it is an easement, that the plaintiff has a right to relocate it. On the contrary, I am convinced that the right to use the pole and electric line is a license—not an easement—which the licensor in this case has a right to modify at will.

At p. 583 in the majority opinion it is said:

“It is suggested that the doctrine of an implied grant [of a quasi-easement in the pole and electric line] incident to the deed to the appellant [Millson or the defendant] is negated by the express grant of an easement of travel over the 30-foot right of way. It is true that as a general rule an express grant of an easement negatives an implied grant of an easement of similar character. We think, however, that the two grants here involved are so dissimilar in character that the express easement of travel should not be held as establishing an intention on the part of the parties not to grant an easement which was clearly necessary and perfectly obvious. This Court had a similar problem before it in the case of Condry v. Laurie, 184 Md. 317.” (Emphasis added.)

The Condry case (also reported in 41 A. 2d 66 [1945], which involved an extraordinary situation where the owner of a landlocked parcel of land had no means of access to his land unless he had an easement of necessity, is not authority for holding that the pole and electric line is a quasi-easement, a “type” of easement of necessity. In that case this Court rejected an argument that the express grant of a license negatived an intention to grant an implied easement of ne*591cessity, but that is not the same as holding that the express grant of an easement will negative an intention to grant another easement—an implied easement of necessity—especially when such other easement might not have been actually necessary. No reason was assigned in the brief or at the argument why the poles for the electric line could not have been erected on one side or the other of the definite 30-foot right of way.

I wholeheartedly agree that “the general rule is that where the location of an easement has been established, by agreement or action of the owner of the servient tenement, in case of an implied grant, it may not be changed except by mutual agreement(Emphasis added.) Furthermore, I do not disagree with the principle of law stated by the majority that, in some instances, “ ‘the owner of a servient tenement may * * * make changes in connection with * * * [an easement] * * * insofar as such changes in no way interfere with the exercise of the easement * * ” quoting 3 Tiffany, Real Property (3d ed. 1939) § 811, and citing Tong v. Feldman, 152 Md. 398, 136 A. 822 (1927), and Frank v. Benesch, 74 Md. 58, 21 A. 550 (1891). But I am convinced that none of the citations is authority to permit the plaintiff in this case to relocate the pole and electric line, if it is an easement, without the consent or approval of the defendant. So far as I can ascertain there is no distinction in law between an easement for the supply of “public services” and an easement “of travel.” Moreover, the ruling of the majority in holding that there is a difference has in effect overruled the holdings in Sibbel v. Fitch, 182 Mid. 323, 34 A. 2d 773 (1943), and Weeks v. Lewis, 189 Md. 424, 56 A. 2d 46 (1947), which the majority also cited for the proposition that an “easement of travel” may not be relocated without the consent of the owners of both the dominant and servient tenements. Furthermore, the ruling will have the same effect on all other Maryland cases which have applied the rule referred to.

In this case the defendant contends that she has a quasi-easement in the location of the pole and electric line above and across the property of the plaintiff and that the plaintiff cannot relocate the line without her permission. The plain*592tiff admits that the defendant has an “easement” to use the line, and has publicly acknowledged his willingness to permit the defendant to continue to use it, but insists that he has a right to move the pole and wires to another location whenever he elects to do so.

It is often difficult to distinguish an easement from a license, but there is a difference. An easement, which implies an interest in land, is ordinarily created by a grant, either express or implied, and is permanent in nature. On the other hand, a license, which does not imply an interest in land, is frequently oral, and is a mere privilege to use the land of another without having an estate therein. 17A Am. Jur., Basements, § 4.

In this case I think it is clear that the defendant does not have an easement for the pole and electric line. The deed to her negatives any intention to grant such an easement. Generally, as the majority stated, when a deed grants an express easement, it is presumed there are no implied easements. The Schuddebooms chose to grant the defendant a necessary easement—the right of way for ingress, egress and regress—but there is no mention in the deed of the pole and electric line. Since the pole and electric line were not included with the right of way in the express grant, the inference is that it was not a necessary easement, and if it was not necessary, it can never be implied. Mere convenience is not sufficient to imply an easement. Knight v. Mitchell, 154 Md. 102, 140 A. 74 (1928). It is apparent, I think, that the use by the defendant of the pole and electric line was intended as a mere privilege and nothing more. In Joyce v. Devaney, 322 Mass. 544, 78 N. E. 2d 641 (1948), it was said:

“The circumstances which give rise to an implied easement do not exist in the case before us. We have not overlooked the findings that for the use of the garage on the plaintiffs’ property ‘the only practical entrance to it is by way of a portion of the presently constructed driveway’ and that ‘there is a reasonable necessity for such use.’ * * * ‘But implied easements, whether by grant or by reservation, do *593not arise out of necessity alone. Their origin must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, * * *.’ The deeds at the time of severance created the specific easements shown on the * * * plan. * * * Those easements are unambiguous and definite. The creation of such express easements in the deeds negatives, we think, any intention to create easements by implication. * * * Expressio unius est exclusio alterius. What the parties may have intended cannot override the language of the deeds.” (Emphasis added.)

See also Karason Co. v. Anglo-American Leather Co., 136 N. J. Eq. 344, 41 A. 2d 895 (1945), in which it is stated that “[T]he express grant of certain easements raises an inference that no other easements were intended to pass by the same deed.”

The same rule was also expressed somewhat differently in Georgia Power Co. v. Leonard, 187 Ga. 608, 1 S. E. 2d 579 (1939) :

“It is not necessary that * * * [the grantor] should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him because they are not granted. * * * No restrictions were stated in the conveyance of the defendant’s easement, and unless the grantor, by expressly reserving certain rights, has limited his privileges to those enumerated under the principle ‘expressio unius est exclusio alterius,’ the rights of the parties are governed by the general rule stated above.” (Emphasis added.)

I am not unmindful of the fact that under some circumstances an express grant in a deed of an easement does not necessarily negate an intention to grant another easement of a similar character by implication. The question is always the intention of the parties to be gathered from the deed in the *594light of the accompanying circumstances. In D’Amato v. Weiss, 141 Conn. 713, 109 A. 2d 586 (1954), for instance, where one of the expressly granted easements was the right to maintain certain steps leading from an alleyway to the kitchen of the defendant, the Court held that this was indicative of an intent that in connection with the use of the steps there was to be a right of passage over the alleyway. However, in the case now before us, there was no indication in the deed that the right of way for ingress, egress and regress had any connection at all with the pole and electric line. These two uses were entirely separate, and were not dependent one upon the other such as they were in the D’Amato case. The rule that an express grant negatives an implied grant is only a rule of construction and not an unyielding rule of law. That is the situation in this case. Obviously our decision should be based on the existing facts which are peculiar to the instant case.

Since a license is ordinarily revocable at the will of the owner of the land, a fortiori the licensor has a right to modify it. Hence, there was no reason why the plaintiff should not have relocated the pole and wires whenever it suited him to do so. In 53 C. J. S., Licenses, § 85, it is stated: “A revocable license may be modified by the licensor.” In Colcord v. Carr, 77 Ga. 105, 3 S. E. 617 (1887), it was held that a license to cut trees after the “scrape” had been removed could be modified in order to allow the trees to be cut only after both the “scrape” and the “stuff” had been removed.

It is also clear that the appurtenances clause in the deed from the Schuddebooms to the defendant—“together with the rights, privileges, appurtenances and advantage thereto belonging or appertaining”—did not create an easement, nor give the grantee an irrevocable right to continue to use the same route or location for the pole and electric line, which had been used by the grantors, and their predecessor in the title, to receive electric service over that part of the land the grantors reserved for themselves to that part of the land they sold and conveyed to the grantee. Oliver v. Hook, 47 Md. 301 (1877); Duvall v. Ridout, 124 Md. 193, 92 A. 209 (1914). The continued use thereof after the date of the deed *595to the grantee was, therefore, merely a permissive use or license, which the grantors, and their heirs and assigns, had a right to revoke at any time. However, since the plaintiff admits the existence of an “easement,” which he is willing that the defendant shall continue to enjoy, she would not be debarred from using the pole and electric line over such other route as the plaintiff might select for the relocation thereof.

From what I have said, I concur in the finding of the majority that the decree of the chancellor should be affirmed, but for a different reason with respect to the pole and electric line.