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appears to have been discussed in any decided case. The only satisfaction I have in deciding the point is this, that it will in all probability be carried to a higher court, and it will be for that court to make the law, or, as we say, declare the law, and not for me.

The real question I have to decide is this, — whether, on a grant of land wholly surrounding a close, the implied grant, or re-grant, of a right of way by the grantee to the grantor to enable him to get to the reserved, or excepted, or enclosed close, is a grant of a general right of way for all purposes, or only a grant of a right of way for the purpose of the enjoyment of the reserved or excepted close in its then state.

There is, as I have said, no distinct authority on the question. It seems to me to have been laid down in very early times — and I have looked into a great number of cases, and among others several blackletter cases — that the right to a way of necessity is an exception to the ordinary rule that a man shall not derogate from his own grant, and that the man who grants the surrounding land is in very much the same position as regards the right of way to the reserved close as if he had granted the close, retaining the surrounding land. In both cases there is what is called a way of necessity; and the way of necessity, according to the old rules of pleading, must have been pleaded as a grant, or, where the close is reserved, as it is here, as a re-grant.

Now the question is, what is the re-grant? I fail to find any exact decision on the point, or anything coming near it, for it does not seem to have been discussed anywhere ; and the only scintilla I can find going anywhere near the point is an observation of the Lord Chancellor Cairns in Gayford v. Moffatt, Law Rep. 4 Ch. 133, 135, in which he says, reading from Mr. Serjeant Williams's note to Pomfret v. Ricroft, 1 Wms. Saund., ed. 1871, pp. 571-574 : “ This principle seems to be the foundation of that species of way which is usually called a way of necessity ; " and then he goes on to say, “ Now, that is exactly the interpre. tation of the words used in this grant, with all ways to the premises appertaining ;' it means, with such a way as the law would hold to be necessarily appertaining to premises such as these, – that is, a way of necessity; therefore, immediately after this lease was granted, this tenant occupying the inner close became entitled to a way of necessity through the outer close, and that way must be a way suitable to the business to be carried on on the premises demised, namely, the business of a wine and spirit merchant.”

It is therefore obvious to me that Lord Cairns thought a way of necessity meant a way suitable for the user of the premises at the time when the way of necessity was created ; and that is all I can find in the shape of authority on the subject.

Well, now, if we try the case on principle — treating this right of way as an exception to the rule - ought it to be treated as a larger exception than the necessity of the case warrants? That of course brings us back to the question, What does the necessity of the case require ? The object of implying the re-grant, as stated by the older judges, was that if you did not give the owner of the reserved close some right of way or other, he could neither use nor occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is.

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That appears to me to be the meaning of a right of way of necessity. If you imply more, you reserve to him not only that which enables him to enjoy the thing he has reserved as it is, but that which enables him to enjoy it in the same way and to the same extent as if he reserved a general right of way for all purposes : that is — as in the case I have before me - a man who reserves two acres of arable land in the middle of a large piece of land is to be entitled to cover the reserved land with houses, and call on his grantee to allow him to make a wide metalled road up to it. I do not think that is a fair meaning of a way of necessity: I think it must be limited by the necessity at the time of the grant; and that the man who does not take the pains to secure an actual grant of a right of way for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the grant was made. I am not aware of any other principle on! which this case can be decided.

I may be met by the objection that a way of necessity must mean something more than what I have stated, because, where the grant is of the enclosed piece, the grantee is entitled to use the land for all purposes, and should therefore be entitled to a right of way commensurate with his right of enjoyment. But there again the grantee has not taken from the grantor any express grant of a right of way; and all he can be entitled to ask is a right to enable him to enjoy the property granted to him as it was granted to him. It does not appear to me that the grant of the property gives any greater right. But even if it did, the principle applicable to the grantee is not quite the same as the principle applicable to the grantor; and it might be that the grantee obtains a larger way of necessity — though I do not think he does — than the grantor does under the implied re-grant.

I am afraid that I am laying down the law for the first time, that I am for the first time declaring the law; but it is a matter of necessity from which I cannot escape.

The demurrer must, therefore, be overruled, with costs.

which thiendants had ih right to erect a bu

ATKINS v. BORDMAN.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1840.

[Reported 2 Met. 457.] Shaw, C. J. This cause, or rather several causes growing out of the same subject of controversy, has long been before the court; and it is to be regretted that all points of dispute, in regard to the relative rights of the parties, have not yet been adjusted. Several questions have beretofore been decided, and the parties have acquiesced in the decisions, and adjusted their buildings in conformity with them. 20 Pick. 291.

The main question, which now remains for consideration, between these parties, is, whether the defendants had a right to erect a building over the passage way which, it is conceded, the plaintiff has a right to have, use, and enjoy, on the southerly side of the defendants' land. It appears that heretofore both of these tenements belonged to one person, and of course neither estate was then subject to any easement for the benefit of the other; because the owner, as the exclusive proprietor, might build upon any part, or use and appropriate any and every part of the estate at bis own pleasure, as his own sense of his interest and convenience might dictate. It is obvious, that so long as two tenements remain the estate of the same owner, no right of easement can he created by use, however long continued ; because such use cannot be adverse. Whenever, therefore, such proprietor conveys away part of the estate so situated, he may create, annex, and convey with the estate granted, such rights of way over his other estate retained, or other easements therein, as he may think fit; and also he may reserve out of the estate granted, and annex to his own estate retained, such easements as he may deem proper. And the acceptance of the deed by the grantee, whilst it gives him the benefit of the easements granted, subjects the granted estate, both in his own hands and in those of all others who may come in under him, to the easements reserved. It stands, therefore, upon the ground of convention, between those who have a disposing power.

There are cases, indeed, in which it is held, that long use may be given in evidence to establish the right of the grantee, in such case, to easements in and over the estate of the grantor; but on a very different principle from that on which prescription or presumed grant is founded. The right claimed depends on grant; but the question often arises, from the ambiguity, brevity, or uncertainty of the descriptive words used, what was the extent of such grant; in other words, what was the

1 The opinion only is given.

intention of the parties in making and accepting the grant. In ascertaining this intent, several rules of exposition are adopted, founded upon experience, to enable courts to determine, or to approximate to such meaning and intent. It is a rule, that the language of a converance shall be construed most strongly against the grantor; because it is his act, and the language that of his choice or dictation. Again ; a grant being made for a valuable consideration, it shall be presumed that the grantor intended to convey, and the grantee expected to receive, the full benefit of it, and therefore that the grantor not only conveyed the thing specifically described, but all other things, so far as it was in his power to pass them, which were necessary to the enjoyment of the thing granted. Thus the grant of a mill actually driven by water, though not described as a water-mill in the deed, carries with it a right to the stream which supplies the mill, although it comes to the mill wholly through other land of the grantor. He cannot divert it, and thus derogate from the beneficial effect of his grant. The grant of a messuage or tract of land, with no access to it but over other land of the grantor, is by implication a tacit grant of a convenient right of way to it over such other land. But there is another rule in ascertaining the meaning of parties where the deed is silent, or the language defective or ambiguous, and one to which we more particularly before alluded ; and it is this : that it is competent, in order to show what the parties probably meant, where the language is not fully clear and unambiguous, to prove the local position, the relative situation of the estate granted, that of the estate reserved, and also the manner in which the grantor himself had used it, when owner of the whole. Suci evidence of use of particular ways over one estate, in the occupation and enjoyment of the other, may tend to show what was necessary, or useful and convenient in this respect, and so considered by him who had a power to use both as he pleased, and therefore tends to show what, by necessary or reasonable implication, was intended. It is very clear that a grantor, by unequivocal words, may convey one estate by definite description, and create and annex thereto an easement in his own other land. This may also be done by necessary or reasonable implication, if the intent so to do can be inferred. Thus, if one grants an estate, with all the privileges and appurtenances, and there be a right of way over a third person's estate, that right of way passes. Indeed, such right of way passes as incident, though “ appurtenances” are not expressed. Kent v. Waite, 10 Pick. 138. But if there be no such right of way, which may be legally and technically. 6. appurtenant,” but the grantor has commonly used a way thereto over his other land ; in order to give effect to the manifest intent, it may be construed to pass a right over such land, not as an appurtenance before existing, but as an easement created by the deed itself, and annexed to the estate granted. So if one grant an estate, with the ways and other easements actually used and enjoyed therewith, evidence aliunde, by parol or otherwise, may be given to prove that a particular way was

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The grantor meitle in one estate for 4 time, or

of anos, grantee.

then in use by the grantor; and then it is held to pass as parcel of the estate conveyed. White v. Crawford, 10 Mass. 183. Story v. Odin, 12 Mass. 157. Morris v. Edgington, 3 Taunt. 24. United States v. Appleton, 1 Sumner, 492. Salisbury v. Andrews, 19 Pick. 250. This view may perhaps tend to reconcile authorities which may seem conflicting, tending on the one side to show that no length of time, or constancy of use, can create an easement over one estate for the benefit of another, whilst there is unity of title in one owner — and on the other, that long use by the grantor may be evidence of title to the easement in the grantee. The long and constant use of a way over the land of another, without interruption or objection, is evidence of right, because it is not to be presumed that an owner would permit such use without right. But the long and frequent use of a way over a part of one's own estate, as conducive to the useful and convenient occupation of another part, tends to show that it was necessary or beneficial ; and, therefore, if there be no other way, or if there be any words describing or alluding to a way actually used, or when way's " appurtenant” are expressed, and in fact there is no way technically appurtenant, such previous use by the owner may be available to give effect to the presumption that it was intended that such right of way should pass, as parcel of, or incident to, the estate granted.

With this view of the law before us, we are to look at the deed by which the defendants' estate was granted by the plaintiff's predecessor, to ascertain the nature and extent of the plaintiff's easements, for a disturbance of which, this action is brought. It has already been decided that in the present case the actual use and enjoyment, on the part of the plaintiff and his predecessors, over the estate of the defendants and their predecessors, have been so nearly in conformity with the provisions of the deed, that it is to be presumed that the parties intended to claim and hold their rights under it, and, therefore, that the plaintiff's rights depend on the reservations in the deed, and not on prescription. The law will not presume a non-appearing grant, or raise a prescription, where a grant is produced, to which his use, occupation and enjoyment may be ascribed. The court were of opinion, that the plaintiff's rights depended on the deed from Haugh to Henry Tew, in 1703. In this deed, the grantor, having described an existing gate and passage way, of about five feet wide, on the southerly side of the estate granted, leading from the street, now Washington Street, into the yard of said messuage, made the following reservation : "Reserving out of this bargain and sale, unto me the said Haugh, my heirs and assigns forever, free liberty of ingress, egress and regress through and upon the said gate or passage way, for carrying and recarrying wood, or any other thing through the same, and over the yard or ground of the said messuage hereby granted, into and from the housing and land of me the said Atherton Haugh adjoining, for the use and accommodation thereof, without damnifying or annoying thereby the said Henry Tew, his heirs and assigns." Upon the construction of this clause, the court decided,

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