Peck v. MacKowsky , 85 Conn. 190 ( 1912 )

Whatever right of way the plaintiff, as the owner in possession of his six-acre tract, may have over the defendant's land has its origin in the reservation made by Benham Barber in his deed of January 12th, 1864, to Ann Delowery, the defendant's predecessor in title, and its character and extent is measured by that reservation. He asserts a no greater right, and rightfully claims one commensurate with the easement Barber reserved. It is clear that the easement of way so reserved was not a personal one, but one appurtenant to the twenty-five-acre tract of which Barber retained the ownership. Blanchard v. Maxson,84 Conn. 429, 433, 80 A. 206. As such, it attached to each and every part of that tract, and the benefit of it passed to the plaintiff, as a successor in title to Barber of the entire tract, and remains in him as the present owner of the six-acre portion of it. Blanchard v. Maxson, 84 Conn. 429, 434, 80 A. 206.

For a determination of the character and extent of the easement reserved by Barber, we must look to the language of his deed, and, if that language is in any respect uncertain or ambiguous, then to that language as read in the light of the situation of the property and the surrounding circumstances, to the end that the intention of the parties may be ascertained and given effect. Sweeney v. Landers, Frary Clark, 80 Conn. 575,578, 69 A. 566. "In the construction of a deed or grant, the language is to be construed in connection with, and in reference to, the nature and condition of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view." Walker v. Pierce, 38 Vt. 94, 97; Rowell v.Doggett, 143 Mass. 483, 487, 10 N.E. 182. When the deed is so read and construed, it is reasonably apparent that the words "as now used," with which the reservation concludes, were employed to designate the location of the way, and not to define or restrict the use to which the way might be put. The grant thus becomes one defined in general terms, and without express limitation as to the character of the user.

Such a grant is to be construed as broad enough to include any reasonable use to which the land might be devoted. Abbott v. Butler, 59 N. H. 317, 318. "A right of way granted or reserved in general terms may be used for any purpose reasonably necessary for the party entitled to use it. . . . The grant being general in terms, it must be construed to include any reasonable use to which the land may be devoted." Jones on Easements, § 375; Gillespie v. Weinberg,148 N.Y. 238, 240, 42 N.E. 676; Watts v. Johnson R. E.Corp'n, 105 Va. 519, 525, 54 S.E. 317; Shreve v. Mathis,63 N.J. Eq. 170, 178, 52 A. 234; Gunson v. Healy,100 Pa. 42, 46.

In the present case, the plaintiff has never undertaken to use the passway, except in connection with the utilization of his premises as land. He has attempted to make it profitable to himself by appropriating and developing the natural resources there present. Whether he has sought to do so by cultivating the soil or by cutting wood, or by quarrying stone, or by making use of the stream which passes through it and the ponding facilities it furnished for the production and harvesting of ice, and has used the passway as incidental to the conduct of these enterprises, he has done nothing more than to undertake to make the most of the resources with which nature has endowed his land. Clearly he has not transgressed his right in attempting to avail himself of the use of the passway in the reasonable conduct of these endeavors.

The only issue presented by the pleadings was as to the existence in favor of the plaintiff of a right of way over the defendant's land, as defined in the Barber deed. The determination of this issue in the affirmative justified the court in issuing its restraining order and in awarding damages. The question of the extent of the plaintiff's right of user was, however, directly involved in the award of damages made. We have therefore dealt with the underlying question of the case in that broader aspect of it which is decisive of the ultimate rights of the parties, as well as of the correctness of the judgment.

The language of the judgment defining the acts forbidden to the defendant was unhappily chosen, and lacks that precision which should mark injunctive orders. The court could scarcely have intended to prohibit the defendant from maintaining in the line of way such gates, readily opened and closed by a rightful user of the way, as were reasonably required for the use and occupation by the defendant of his premises. And yet the order might be understood as forbidding the maintenance of such gates. The appeal makes no complaint of the terms in which the order is couched, either as to its uncertainty or its scope. We might, therefore, properly ignore that subject. But in view of the importance of avoiding misunderstandings and possible controversy in the future, we feel constrained to say that the true intent and meaning of the order is, not that no gates, although reasonably required by the defendant in the use and occupation of his land and suitably constructed to permit their ready use, may be maintained by the defendant in the line of the passway, but that none shall be there maintained of such a character as to be an obstruction to travel, in the fair intent and meaning of that word as related to a situation such as the case presents. The court unquestionably had in mind the barred gates which the defendant was maintaining, and undertook to deal with that situation, among others. Its purpose was to forbid the maintenance of any and all constructions or artificial conditions which might properly be regarded as creating an obstruction to free passage at pleasure; and its order should be so construed.

There is no error.

In this opinion the other judges concurred.