This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
49. Reis v. City of New York, 188 N. Y. 58, 80 N. E. 573; Haw-ley v. Baltimore, 33 Md. 270.
50. Molitor v. Sheldon, 37 Kan. 246, 15 Pac. 231; White v. Tidewater Oil Co., 50 N. J. Eq. 1, 25 All. 199; Livingston v. New York,
8 Wend. (N. Y.) 85, 22 Am. Dec. 622.
51. Highland Realty Co. v. Avondale Land Co., 174 Ala. 326, 56 So. 716; Earll v. City of Chicago, 136 111. 277, 26 N. E. 370; Alden Coal Co. v. Challis, 200 111.
The failure of the decisions clearly to explain the true nature of the estoppel operating to give to the grantee of land an easement corresponding to a street or way, which though actually nonexistent, is referred to as a boundary, or of that operating to give to him an easement corresponding to a street or other public place appearing on a plat referred to in the conveyance, as well as the difficulties involved in the question whether a sale according to a plat, as distinct from a conveyance according to a plat, operates to preclude the grantor from denying the existence of the easement, appear to emphasize the desirability of treating the matter, for the most part at least, as one of the construction of the instrument of conveyance rather than as one of estoppel. The question then in each case becomes one of the meaning of the language used as regards the property conveyed, whether, that is, it means the land alone, or the land with an easement annexed thereto? While a conveyance of land as bounded on a street or way is ordinarily presumed, in case the street or way is nonexistent, to mean the land with a private easement annexed thereto, this presumption has no operation in case a different intention appears from the particular language used.52 And it would seem, as evidence is always admissible to aid in the construction of an instrument, this presumption may be rebutted by reference to the surrounding circumstances at the time of the transaction. So the fact that the grantee knew that
222, 65 N. E. 665; Rowan v. Portland, 8 B. Mon. (Ky.) 232; Heitz v. City of St. Louis, 110 Mo. 618, 19 S. W. 735; Quicksall v. Philadelphia, 177 Pa. 301; Clark v. Providence, 10 R. I. 437; Oswald v. Grenet, 22 Tex. 94; City of Corsicana v. Zorn, 97 Tex. 317. 78 S. W. 924; Lins v. Seefeld, 126 Wis. 610, 611, 105 N. W. 917. 52. Ante, this section, note 38a.
2 R. P. - 9 which there is an actual misrepresentation by the vendor, on which the purchaser relies, as indicated in the following subsection.
- (c) By representation or acquiescence. If, in order to effect a sale of land, the intending vendor states that there is a street or way adjacent to or near the land, or an easement appurtenant thereto, and on the faith of such statement the purchase is made, the vendor is ordinarily estopped to deny the existence of the way, street or other easement,53 and the same effect has occasionally been given to the exhibition by the vendor to the vendee, before the sale, of a plat showing a particular street or way as existing in connection with the property.54
The doctrine of estoppel by representation, by means of conduct of a particular character, has occasionally
53. Prescott v. Edwards, 117 Cal. 304, 59 Am. St. Rep. 156, 49 Pac. 178; Kirkpatrick v. Brown, 59 Ga. 450; Mattes v. Frankel, 157 N. Y. 603, 52 N. E. 585, 68 Am. St. Rep. 804; Cleaver v. Manhanke, 120 Iowa, 77, 94 N. W. 279; Kixmiller v. Bait. & O. S. W. R. Co., 60 Ind. App. 686, 111 N. E. 401.
So it was held that purchaser of lots to whom the vendor had stated that there were appurtenant thereto rights as to sewers and a water system could not be deprived by the vendor of the right to make use of such sewer and water systems as existed, Biggs v. Sea Gate Ass'n, 211 N. Y. 482, 105 N. E. 664.
The purchase must obviously be made in reliance on the statement by the vendor in order that the latter be estopped. Poronto v. Sinnott, 89 Vt. 479, 95 Atl. 647.
54. Ford v. Harris, 95 Ga. 97, 22 S. E. 144; Cihak v. Klekr, 117 111. 643, 7 N. E. Ill; Dubuque v. Maloney, 9 Iowa, 450, 74 Am. Dec. 358; Babcock v. Heenan, 193 Mich. 229, 159 N. W. 494; In re Edgewater Road, 13 N. Y. App. Div. 203, affirmed 199 N. Y. 560; In re Sedgwick Ave., 162 N. Y. App. Div. 236, 147 N. Y. Supp. 661.
In Pyper v. Whitman, 32 R. I. 510, 80 Atl. 6, such an effect was denied to the exhibition of a plat, apparently on the theory that it would involve a violation of the "parol evidence" rule. In Dawson v. St. Paul Fire & Marine Ins. Co., 15 Minn. 36, 2 Am. Rep. 139, it was questioned whether the exhibition of a plat should have this effect.
54d. Ante, Sec. 339(h).
Been applied or asserted for the purpose of establishing an easement when the one claiming the easement has made improvements, or otherwise adopted a particular course of action on the assumption that a changed condition already existing in connection with a stream or body of water would be allowed to continue, with the result that the owner of the land on which such condition existed was precluded from changing back to the original condition,54d and one might be estopped to deny the existence of an easement by his conduct in inducing another to make improvements for the purpose of utilizing the supposed easement.54e
In case there is an attempted oral grant of an easement, and the intended grantee makes improvements for the purpose of exercising the easement, equity will recognize and enforce the easement on the theory of what is ordinarily referred to as that of part performance54f but which is essentially the theory of estoppel.
54e. See Miller & Lux v. Enterprise Canal & Land Co., 169 Cal. 415, 147 Pac. 567; Morris Canal & Banking Co. v. Diamond Mills Paper Co., 71 N. J. Eq. 481, 64 Atl. 746, 73 N. J. Eq. 414, 75 All. 1101; Smith v. Rowland, 243 Pa. 306, 90 Atl. 183. See cases cited, note to L. R. A. (N. S.) 1916C, at p. 940 et seq.
Ordinarily, however, one's mere acquiescence in the making of improvements by another for the purpose of making a use of the latter's land which involves a violation of a Natural right appertaining to the former's land involves no estoppel to deny the existence of an easement in diminution of such catural right. See Lux v. Haggin, 69 Cal. 255, 10 Pac. 674; Johnson v. Lewis, 13 Conn. 303, 33 Am. Dec. 405; Penn American Plate Glass Co. v. Schwinn, 177 Ind. 645, 98 N. E. 715; Townsend v. Epstein, 93 Md. 537, 52 L. R. A. 409, 86 Am. St. Rep. 441, 49 Atl. 629; Morrill v. St. Anthony Falls Water Power Co., 26 Minn. 222, 37 Am. Rep. 399, 2 N. W. 842; Laird v. Atlantic Coast Sanitary Co., 73 N. J. Eq. 49, 67 Atl. 387; New York Rubber Co. v. Rothery, 107 N. Y. 310, 1 Am. St. Rep. 822, 14 N. E. 269; Lavety v. Arnold, 36 Ore. 84, 57 Pac. 908, 58 Pac. 524; Silver Spring Bleaching & Dyeing Co. v. Wanskuck, 13 R. I. 611.
54f. Ante, Sec. 349(d), notes 44-49.