Lide v. Hadley , 36 Ala. 627 ( 1860 )

R. W. WALKER, J.

The will of William Godfrey contained an express grant to Mrs. Underwood of a right of way from the public road to the laud devised to her, over the intermediate land of the testator. This right was appurtenant to the land devised, and not a right in gross; and passed by a conveyance of the land to the alienee, without express mention of the appurtenances. — Coke’s Litt. 121 (b.); Smiles v. Hastings, 24 Barb. 44, 48; Underwood v. Carney, 1 Cushing, 285, 290; Trustees v. Cowen, 4 Paige, 510, 514; Pitkin v. L. I. R. R. Co., 2 Barb. Ch. R. 231; Williams on Real Prop. 269; 2 Hilliard on Real Property, (3d ed.) p. 16, §§ 60, 62-3, he. In like manner, it was'a charge upon the intermediate laud; and when the defendant purchased that land, he took it subject to the easement.-Wissler v. Hersey, 23 Penn. St. R. 333; Hills v. Miller, 3 Paige, 254; Wolfe v. Frost, 4 Sandf. Ch. 72.

'A right of way of necessity ceases with the necessity which gave rise to it; so that, if a public road is opened, or the grantee purchases other land, which gives him a •way over his own land, the first right of way ceases. Collins v. Prentice, 15 Conn. 39; Pierce v. Selleck, 18 Conn. 321; N. Y. Life Ins. Co. v. Milnor, 1 Barb. Ch. R. 353 ; Holmes v. Goring, 2 Bing. 76. But the case is otherwise, where the owner of land has a right of way to the same, over the premises of another, by prescription, or by express grant. — N. Y. Life Ins. Co. v. Milnor, 1 Barb. Ch. 362. Even if it be conceded, that the right which the complainant obtained by his purchase from Mrs. Underwood, would terminate whenever he acquired another way to the land devised; it certainly is not impaired by the fact, that he has a mere -permission, revocable at any time, to pass over Chapman’s land, so as to reach his own. A privilege which is held by mere favor, and which may be withdrawn at any moment, can in no sense be deemed a right; and we apprehend that it is the acquisition of a legal right to another way, which terminates a prior’'way of necessity.

[2.] The difficulty in the case is not as to the existence of the complainant’s right, but as to whether there is any ground of equitable jurisdiction. The testator,, in granting the right, prescribed the general direction of the way, but did not designate its specific track. He left this to be done by agreement between the devisee of the right and his other heirs, and provided that, in the event they could not agree upon the location of the way, they should select three disinterested persons to lay off the road. The devisee and the heirs parted with .the dominant and servient estates, without having located the way, or selected commissioners for that purpose; and the right and duty of making the location, or, in case of disagreement, of selecting third persons to do so, have devolved upon their respective alienees. At all events, the devisee of the right, and the heirs who were the owners of the land subject to it, have, by conveying to others their interest in the property, divested themselves of all authority in reference to the location of the way. The right to have a way allotted to him certainly passed to the complainant; and if he obtained the right, unattended by the privilege which the will conferred on Mrs. Underwood, to participate in the specific location of the road, or to. have a voice in the se~ lection of commissioners for that purpose, this, of itself, would seem to justify the interposition of chancery; otherwise, there would be a clear right to have a way, but no means of designating and laying off its specific track.

Nor is the result different, if we assume, as we think may properly be done, that the complainant and the defendant have, by their purchases, been substituted to all the rights which the will conferred on the heirs and devisee, in reference to the location of the road. True, it is not shown that the complainant called upon Lide to join him in designating the track of the, way, or in selecting commissioners for that purpose. But it'is alleged and proved, that the defendant denied entirely the existence of any right in the complainant to have a way over the lands in question; and it is shown by the defendant’s answer, as well as by his previous acts, that a demand for the location of the road, either by the parties themselves, or by third persons to be chosen by them, would have been useless. It was not necessary, therefore, to allege or prove such demand; and the rights of the parties, in a court of chancery, are just what they would have been if the making and refusal of such demand had been alleged and proved. — Elliott v. Boaz, 9 Ala. 779. This being so, the case presented is briefly this: The complainant has, by express grant, a right to have- a way'over the lands of the defendant. By the terms of the grant, the specific location of the way is to he determined by the joint action of both parties, either by laying off the road themselves, or by selecting three disinterested third persons to do so. The defendant, however, denies the right of the complainant, and repudiates all obligation on his part to act in the premises. By his refusal to perform the duty cast upon him by his purchase of the servient estate, the means which, by the terms of the grant, were provided for the location of the way, have failed. The right of the complainant, however, is not thereby destroyed. That is still perfect, although the defendant’s refusal to perform his duty may have deprived the complainant of the means of specifically defining the way to which he is entitled. Under these circumstances, it seems clear that the complainant may come into a court of equity, to enforce specific performance of the grant. — See 2 Story’s Eq. § 788.

It may be said, that on the refusal of Lide to join in locating the way, or in selecting commissioners, the complainant was himself authorized to lay off the road, corresponding with the general directions of the will; and that, having the power to establish the track of the road by his own act, he cannot call upon a court of equity to establish it for him, or to afford him any relief in relation to it, unless he has first, by the exercise of his privilege of location, obtained a right to a particular -way. Without stopping to consider whether the complainant had any such right to locate, the way as is here supposed ; or, if he had, whether he was bound to assei’t it by an actual location, as a condition'essential to his claim to equitable relief, a satisfactory reply to this position is found in the fact, that if the complainant had such right, it is sufficiently shown that he exercised it. After Iladley bought, he at first used a way, not corresponding with the old road used by Godfrey in his life-time. On the suggestion of the defendant, the road traveled by the complainant was changed, in'1855 or 1856, so as to correspond with the old road used by Godfrey. The road as thus changed is that which is laid down in the map which forms an exhibit to the original bill. This road the complainant continued to use, uutil it was obstructed by the defendant; and although his right to use it was always denied by the deiendant, it is plain that the complainant asserted his claim to use it as secured by Godfrey’s will. If, then, the complainant was authorized to locate the way, he did, in effect, do so, by adopting and claiming the right to use the particular road last spoken of. The allegation that ■Mrs. Hnderwood used this particular road before her sale to the complainant, is not proved; nor was it necessary that it should be, as the complainant’s title to relief is made out without establishing that fact. This Í3 not a case of variance,but afailure to prove an unnecessary allegation. On the supposition, then, that the complainant had the right to locate the way, and has exercised it, the bill might be maintained, as a bill to quiet his title to the use of that particular way, and to enjoin the disturbance of it.

A court of law might, it is true, give damages for a disturbance of the way. But that would not afford adequate relief for such an injury. Hence, it is settled that, where easements or servitudes are annexed, bj? grant or otherwise, to private estates, the due enjoyment of them will foe protected against encroachment's by injunction, although an action for.damages would lie at law. — Hills v. Miller, 3 Paige, 254; Trustees v. Cowen, 4 Paige, 510, 514; Seymour v. McDonald, 4 Sandf. Ch. 502 ; 2 Story’s Eq. §§ 925-6-7; Burden v. Stein, 27 Ala. 104. A recovery at law might be, in some measure, indemnity for the past, but would hardly he security for the future. The way might, and probably would, be again obstructed, and the farm rendered comparatively valueless by the inability of the owner to cultivate it. To deny to the owner of land, suited for agricultural purposes, all access to it, is to take so much from the general wealth of the community; and is, therefore, an indirect injury to the public, as well as a direct wrong to the individual proprietor. In Dalton v. Taylor, (2 Lutw, R. 1487,) one of the grounds on which the existence of a way of necessity is placed, is, that it is not for the public good that the close should be left uncultivated. The fact that the remedy at law is embarrassed, or doubtful, or difficult, or' less full and completo than the remedy in equity, is enough to justify resort to a court of chancery.-Am. Ins. Co. v. Fisk, 1 Paige, 90; Boyce v. Grundy, 3 Peters, 210; Barnes v. Lloyd, 1 How. Miss. 584; Pearl v. Nashville, 10 Yerger, 179.

In any aspect of it, the case is one for equitable cognizance. But we are best satisfied to rest the jurisdiction of the court on its power to enforce specific performance of the grant, by establishing the right, and defining the track of the way, and its authority to enjoin the disturbance of the way when thus laid off.

[3.] The account of the damages which the .complainant had sustained, was properly decreed, as an incident to the other relief granted. — 30 Ala. 307. And it makes no difference as to this claim, whether the specific way to which the complainant was entitled bad or had not been designated. He bad the right to have some way over the land of the defendant. Of this right he was deprived by the latter; and if the deprivation of his right has wrought an injury'to the complainant, be is entitled to eorope»satiou. •

Decree affirmed.