" 792 VASSAR V. MITCHELL. .L169 " VASSAR V. MITCHELL. Opinion delivered November 9, 1925. 1. EASEMENTS—RIGHT-OF-WAY.—If one sells tO another a tract of land surrounded by other land of the grantor, a right-oVwaY acrosi such 'land is necessary to the enjoyment of the land ,granted, and is implied from the grant made. 2. EASEMENTS—IMPLIED GRANT OF RIGHT-OF-WAY—REBUTTAL.—The inference of an implied grant of a right-of-way across land of a vendor as a way of necessity may be rebutted by parol proof showing the contrary. 3. APPEAL AND ERROR—CONCLUSIVENESS OF ClaNCELLOR'S 'FINDINGS. —On appeal chancery cases are tried de novo, and frndings of fact by the chancellor are allowed to stand unless they are clearly against the preponderance of . the evidence. 4. EASEMENTS—RIGHT-OF-WAY—EVIDENCE. — In an action to establish a right-of-way across land originally owned by plaintiff's grantor, evidence held to sustain a finding of the chancellor that the right-of-way was not granted. • Appeal from Washington Chancery Court ; Sam Wil-liams, Chancellor ; affirmed. Joh y Mayes, for appellant.. C. D. Atkinsoy , for appellee. HART. J. A. Z. Vassar prosecutes this appeal to reverse a decree dismissing his complaint • for want •of
ARK.] VASSAR V. MITCHELL. 793 • equity in a case in the chancery court wherein he sought to compel J. 0. Mitchell by a mandatory injunction to remove,a fence along the side of his pi . operty over, which the plaintiff claimed that he had acquired an easement , for a private driveway. The undisputed evidence shows that N: H. 'White formerly owned both lots or pardels of 'ground which are sitaated- in Fayetteville, Ark: On the 8th day ef 1921, N.11. White conveyed by deed' to A: . Z. Vassar a strip of land 100 feet long north and' south, 'and 79 feet wide east and west off : of the weSt side' of a parcel . of ground owned by him in said city..' The eastern part of the whole parcel of ground so 'owned by . White contained two dwelling houses. These two dwelling houses fronted on a public:street, amt.there was a , private drivei-ay- ex-teriding 'on the line between the two :lots from the :Street to the rear end' of the proPerty which White cOnveyed.to Vassar: -This private driveway, was the only . means of access to the parcel of ground sold . to Vassar except over the right-of-way of the St. Louis & San Francisco Railway Co. The roadbed of the:railroad in front , of the.Vas-sar lot was raised 4 or 5 feet above the level of the ground adjacent to it. Subsequently White conveyed one of the lots along . which the private , driveway extended to J. 0. Mitchell, and the other one to j..I. Graves._ The only means of access to the parcel of ground sold to :Vassar, except over, the rightof-way of the railway , company, was, along,the private driveWay between the lot sold to Mitchell and the one sold to Graves. If one 'sells to another a tract* of land srirrounded by other land of the grantor, a right-of-way adrOss such other land is w necessity to the enjoyment of . ' the land granted, and is implied from the grant made. Bélser v. Moore. 73 Ark. 296. The principle from which , the doctrine of implied grants of easements o o v th e e r r , lands .of the grantor springs is said to be found in the maxim that "one shall'not . derogate from his grant", and the fl kindred one; that the purchaser takes the land bought, and What-
794 VASSAR V. MITCHELL. [169 ever right in the hands of the grantor as is necessary to its, enjoyment. BoneIli Bros. v. Blakemore, 66 Miss. 136. • In the case before us, while there is :evidence from which it might be, inferred that Vassar was entitled to the outlet in question as a way of 'necessity, it was not conveyed to him by the deed he rec,eived from,White, and the inference s' h own h y thp pnrol proof from which.the implied ,grant is inferred may be rebutted by parol, proof ,showing to the contrary. Golden v. Rupard (Ky. Ct. of ; Appeals) 80 . S.,W. 162; Lebus v. Boston (Ky, Ct. of Apeals) 51 S. W. 609, 47 L. R. A., 79, 92 Am. St, Repts. 333,; and Ewert y. Burtis, (N. J. Eq.) 121 Atl. 893. There iS a direct conflict in the evidence as tO whether ;this private driveway or•outlet from: the _premises purchased bY Vassar was excepted from the sale to. Vassar ,by the , contract of the parties. •There was a finding against Vassar by the chancellor, and this brings us to a consideration of the weight to be given to his finding:. ' It is well settled in this State that on appeal chancery canseS . are 'tried de nóvo, and that the findings of facts :by the chancellor are allowed to stand, unless they are clearly' against :the preponderance : of the evidence. Leach v. SMith, 130 Ark.' 465. ": "As„we have already Seen; an easement of necessity 'Of a private Way ordinarily arises , where one convey's to ' another land entirely surrounded by the land Of the krhntor, ofthe land of the grantor and that of a Stranger. 'In stich a ease, parol proof'of the way Of necessity giyes rise to an implied grant of an easement or right'of way .across the 'grantor's land, although none is expressly : granted by the deed. In the case before us, there was no express grant of • a right,of-way over the grantor's land in the deed, :and the chancellor found -that the implied grant of a right-' of, way by necessity was overcome by the proof on the 'part Of appellee' to the effect that at the time of the con-, veYnnce it was expressly agreed between Vassar and White that the ,former Was only to have the use of the
Auk.] VASSiR V. MITCHELL. 795 private way so long as the land over which it extended was Owned by White. On this point; N. H. White . was a witness -for' the defendant. According to his testimony, when 'he sold the property to Vassar, he &ad him that it was Worth $500 with the road to it ; but that there was no road to it,.and that if Vassar wanted it for $360 he could have it for that price. White told Vassar that he would knock off the $140 so as 'to help him' buy a road alt. He expressly : tOld Vassar that he was not getting a roadway out from the house, and -Vassar so understood the agreement. The testimony of White was corroborated hy that of E. E. Trippe, who wrote the contract between Va'sSar.and White .for the purchase and sale of the lot in question. 0. Mitchell testified that before he built , the fence in question' Vassar asked' him if he was going to fence in his land ; and that he, Mitchell, replied that he -was going
to do so When he got able. Vassar , Made , no ObjeCtion, but did object when Mitehell began to build the 'fence. A. Z. Vassar was a witness for himself. According to 'his testimony, he agreed to buy the property in question if White would guarantee him a road to White agreed to this, and he bought the property. He denied that White told him that he could make use of the private road only so long as he owned the •roperty; and that he would have to buy a road out from his property when White sold the lots along which the private way extended. In addition to this testimony is the evidence tO' the effect that a private way was neessary to give Vassar an outlet from his property to the street. . Under this state of the record, it . cannot he said that the finding of the chancellor is clearly against.the weight of the evidence. While'his finding resnits in a hardship to Vassar, still it would not' be equitable to require Mitch-ell to furnish a private way for an ontlet to , Vassar's land, if the latter purchased it for a lower price because it had no such outlet. In other words, if Vassar acquired title to the property for a lower price because'it had no outlet,
he was in no position to claim rights which amount to a burden upon a subsequent grantee of White, which he, Vassar, ha,d expressly renounced in order to secure such conveyance. • It follows that the decree must be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.