Pierce v. Selleck , 18 Conn. 321 ( 1847 )

Church, Ch. J.

The defendant justified only under a right of way from a five-acre wood lot belonging to himself, over the plaintiff’s land, to his, the defendant’s,, dwelling-house. This right he claimed, either as a way of necessity, or by prescription.

1. Nathaniel Green once owned both of these pieces of land. In 1795, he conveyed to Samuel Pierce, under whom the plaintiff claims, a certain tract of land described in his deed, excepting from the general description, this small piece, now owned by the defendant, and which he afterwards sold to Milo Selleck, under whom the defendant claims it. The case finds, that Green, after his conveyance to Pierce, had no other means of access to the five-acre piece reserved, than over Pierce’s, the present plaintiff’s land, where this trespass was committed ; and the defendant supposes, that by reserv. ing the five-acre lot, Green reserved a right of way of necessity to it, over this land of the plaintiff, which right he conveyed, as an appurtenant, to Milo Selleck, by his deed to him.

The general principle, advanced by this court, in the case of Collins v. Prentice, 15 Conn. R. 39. is not disputed. If a man having two parcels of land, to one of which he has no access except over the other, and he conveys the accessible parcel, reserving the inaccessible one, a right of way to the latter over the former, is reserved to the grantor.

But it does not follow from this, if he afterwards convey the inaccessible parcel, as in this case, to a third person, that such person, by virtue of the terms or force of the deed is entitled to the same right of way. Milo Selleck, though holding under Green’s deed, might have had no such necessity as Green had, to pass across the land in question. They did not reside in the same vicinity ; and their line of travel to and from this land, must have been very different. Nor does it appear, but that the other lands of Milo Selleck, contiguous, might have , . ° ° accommodated 1,1m with a more convenient way.

It is true, that Milo Selleck, and under him, the defendant, as owners of the five-acre piece, may have had a way of necessity, as now claimed ; but this was not the same way, or right of way, which Green had, but a new right, accruing to Selleck, as purchaser, and incidental to his ownership of the land under Green, and limited by his own necessities, and not by the necessity of Green, his grantor. It is a fallacy to suppose, that a right of way of necessity is a permanent right, and the way a permanent way, attached to the land itself, whatever may be its relative condition, and which may bo conveyed by deed, irrespective of the continuing necessity of the grantee. Howton v. Frearson, 8 Term R. 50. Pomfret v. Ricroft, 1 Wms. Sound. 323. n. 6. Holmes v. Elliott, 2 Bing. 76. (9 E. C. L. 324.)

Whatever right of way, therefore, this defendant has, or may have had, it was not created by the operation of the deed from Green to Samuel Pierce, excepting the five-acre parcel from the operation of that conveyance, and of which, as the defendant claims, he cannot bo divested, except by his own act or consent. The truth is, that deed had no other legal effect, than it would have had. if it had only embraced in its description, the land intended to be conveyed to Pierce, without any exception or reservation at all. The right which Selleck obtained, by virtue of his deed from Green, to pass over the plaintiff’s land, was a mere incident to the purchase, and his own ownership of the land purchased, if the necessity existed, and so long as it continued only. It is a principle true from the very nature of the case, and as such is recognized by all the authorities, that a way of necessity, whether it originates in the necessity of the party claiming it, or from the operation of deeds, furnishing evidence of the intent of parties, where a necessity exists, is limited by the necessity which creates it, and is suspended or destroyed, whenever such necessity ceases. Buckly v. Tolles, 5 Taun. 311. Collins v. Prentice, 15 Conn. R. 39. 3 Kent's Com. 338. Conceding, therefore, that the defendant had, at any time, a way of necessity over the plaintiff’s land, the question is to bo determined, whether it existed at the lime of the alleged trespass, or had been discontinued before.

It was admitted, that, since Milo Seileck purchased the small lot of Green, a new public highway had been laid out and opened across the same, by means of which the defendant could, with convenience, transport his wood to a market ; but the defendant claimed, that such new highway was not convenient for him to use in conveying his wood from said lot to his dwelling-house, and introduced evidence to prove this; and from this fact, he claimed, that the opening of the public highway across his land, did not determine the right of way which he claimed before.

To admit this claim of the defendant, would be to extend the claims to rights of way, beyond all former precedent, and to introduce an additional right not heretofore known to the law, a way of convenience. The exclusive dominion of every man over his own soil and freehold, now held sacred by our constitution and laws, would, in this way, be essentially impaired. The exigencies of society do not call for this. Formerly, the dwelling-house of the defendant, might have been the only point available for his reasonable use of his wood-lot, by means of the way claimed ; and hence the existence of the necessity. But is it so, since the opening of the public road ? It may be, and probably is, true, that the new road has opened to the defendant a convenient market for his wood and timber, and thus much enhanced its value. If so, there is no necessity for him to retain a pass way to his dwelling-house over the plaintiff’s land, although there may be a convenience ; and especially, when it appears, that by means of the public highway, the defendant has, at all times, free access from his dwelling-house to the land in question. And if it is true, as the defendant claimed, that the distance is greater to the defendant’s dwelling-house, by the public than by the private way, if that was the essential point to be reached; and if thereby the expense of transportation would be enhanced ; still so long as the access- by the highway is free and continued at all times, it results in a question of comparative convenience, and not of necessity ; and the court, therefore, properly instructed the jury, that if the necessity ceased, the right of way ceased also, although such private way might be more convenient for the defendant than the public highway. Nicholas v. Luce, 24 Pick. 102. McDonald v. Lindall, 3 Rawle 492, 3. Stephens' N. P. 2766. Witter v. Harvey, 1 McCord, 67. Lawton v. Rivers, 2 Id. 445. Turnbull v. Rivers, 3 Id. 131. Seabrook v. King, 1 N. & M. 641. It is a mistake to suppose, that the location of the dwelling-house of a party, is, in all cases, to controul the question of necessity, as the defendant here seems to contend.

2. The defendant attempted to establish a prescriptive right of way over the plaintiff’s land ; and for this purpose introduced evidence to prove, that his father, Milo Selleck, and himself, for more than fifteen years, were j,n the uninterrupted practice of passing the plaintiff’s close! in the Winter season, with teams, &c., for the purpose of drawing their wood and timber from their wood-lot to the dwelling-house now occupied by the defendant; and thereupon claimed, that he had acquired the right asserted, and justified under it. Such evidence was pertinent to prove such way, and, unexplained, would afford prima facie evidence of it. But here every thing depends upon the character of the practice, or user, relied upon. If it was continued, uninterruptedly, under a claim of right, and exercised in the face of a proprietor sui juris, it might ripen into a right in fifteen years. But all this was denied, by the plaintiff, who claimed that neither Milo Selleck, nor the defendant, had ever crossed his land, except by his courtesy and license, and subordinately to his rights as owner. And to prove this, he examined the witness Clark, and introduced other evidence. The counsel for the defendant, upon this naked question of fact, insisted to the jury, that this witness, in some way, had contradicted himself, liad sworn falsely, and by his demeanour upon the stand, had materially impaired the credibility of his own testimony ; and then asked the court to instruct the jury, that for this cause they should find the way by prescription, as he claimed it, to be proved. The judge says, however, that on this point there was other evidence, in addition to Clark’s. He could not, therefore, withhold such other evidence from the jury, and direct them to place the whole of this issue upon Clark’s credibility.

But if there had been no evidence to sustain Clark ; and if the evidence of the defendant’s prescriptive right had been strong ; still there is no fact stated here, by which we can see that he was not entitled to credit. The judge, at the trial, saw nothing detracting from the full weight of his testimony; and yet we arc asked to grant a new trial, merely because the counsel claimed to the jury, that Clark was not entitled to their belief! The judge was not asked to instruct the jury, if for any cause, they doubted the credibility of Clark, that they ought not to permit his testimony to avail against the better opposing evidence of the defendant. The whole was a matter exclusively for the jury : and the court was not bound to interfere, by its direction or advice.

But it was claimed, that Clark’s testimony was not available to the plaintiff, for another reason — that, its tendency and effect was, to destroy a right of way, by the parol confessions of a party entitled to it. This is assuming as a truth, for the defendant, the very matter in dispute, and which the plaintiff denied. He denied that any such right of way had been proved, or existed ; he claimed that Selleck’s user was such, that no right had ever been acquired : and to prove the nature of the defendant’s user, and of course, the user of Milo Selleck, under whom he claimed, and not to destroy a right, cither proved or conceded, was the tendency and purpose of Clark’s testimony ; and for this end it was clearly admissible and availing.

We are clear that no new trial should be granted.

In this opinion the other Judges concurred.

New trial not to be granted.