Peck v. Loyd , 38 Conn. 566 ( 1871 )

Park, J.

We think it clearly appears from the motion for a new trial that the plaintiff has a right of way over the defendant’s land, originating in the deed of partition of the estate of Nathaniel Sackett among his heirs in 1769. The lands now owned by the plaintiff and tlie defendant were originally parts of that estate, and each of the parties has come into the possession and ownership of the land through a long line of conveyances from the heirs of that estate. The estate was divided among the heirs in strips of land running through the estate from east to west, and the deed of partition gave each of the heirs, his heirs and assigns, a right of way over the lands of the other heirs of the estate to a highway on the south.

The right of way was therefore made appurtenant to each of the pieces of land, and each deed in the plaintiff’s line of conveyance conveyed the land with the appurtenances thereof, which was sufficient of itself to convey the right of way, together with the land, to each of the grantees, and finally to the plaintiff. Frink v. Branch, 16 Conn., 260; Smith v. Moodus Water Power Co., 85 id., 392; Post v. Smith, id., 561; Strong v. Benedict, 5 id., 219.

Six of the deeds in the defendant’s line of conveyance from the estate of Nathaniel Sackett grant the land subject to the plaintiff’s right of way over the land. The last three deeds are of this description, thereby showing that the defendant’s immediate grantors acknowledged while they were the owners of the defendant’s land that the land was under the servitude of the plaintiff’s right of way, and conveyed the land subject thereto. In addition to these faots, the court finds from parol evidence that down to the .time the defendant’s grantor owned the land now owned by the defendant, there was a regular defined way, as appears by the plaintiff’s map of the premises, from the land now owned by the plaintiff over the defendant’s land to the highway on the south, which had been used by the owners and occupiers of the plaintiff’s land from the earliest recollection of aged witnesses, as occasion required.

We think these facts clearly establish a right of way appurtenant to the plaintiff’s land over the land of the defendant, unless the way has been abandoned within a few years.

The defendant claimed on the trial in the court below, and offered parol evidence to prove, that the two immediate grantors of the defendant, when they deeded the land subject to the plaintiff’s right of way, did so through the mistake of the scrivener, but the court rejected the evidence, and we think correctly. 1 Greenl. Ev., secs. 275, 6, 7.

It further appears in the case that one Downes owns a tract of land, derived from the estate of Nathaniel Sackett, over which the plaintiff’s right of way extends. The land lies south of the plaintiff’s land, and joins the defendant’s land on the north. Just previous to the commencement of this suit the plaintiff gave permission to Downes to build a house on his (Downes) land across the located way on the land, so that after the building was constructed it was necessary for the plaintiff, in the use of his way, to pass by the house a few feet farther to the east than the located way*, which Downes agreed the plaintiff might do. About the same time the plaintiff gave further permission to Downes to build a stone fence across the located way, in the division line between Downes’ land and the land of the defendant, leaving a bar-way through wliich the plaintiff might pass a few feet east of the located way, so that after the fence was constructed there was no entrance for the plaintiff to the defendant’s land from the north except through the bar-way, which was made for the plaintiff’s use.

The defendant claimed as matter of law that these licenses given by the plaintiff to Downes precluded the plaintiff’s recovery in this suit against the defendant for obstructing the plaintiff’s right of way on the defendant’s land. It is difficult to see what foundation there is for this claim. These licenses show no intention in the plaintiff to abandon the way, but on the contrary they show an intention to continue the use of the way, the same after the licenses were given as before ; for the plaintiff required that Downes should provide a way by the building and through the division fence in consideration of the licenses.

Neither is it any defence in this case that the plaintiff could not enter the defendant’s premises through the bar-way provided by Downes for the plaintiff’s use, without committing a technical trespass to the defendant’s land. It would be remarkable indeed if the plaintiff’s right of way existing by deed should be destroyed, because the plaintiff, through the merest accommodation to Downes, allowed him to perform an act which resulted in rendering the plaintiff unable for the time being to enjoy the way, without committing a technical trespass to the rights of some one along the line. Rights existing by deeds are not held by such feeble terms. The rights exist whether they can be enjoyed in presentí or not, owing to some unforeseen occurrence, or the .allowance of some' act like the present one. The plaintiff did not put it out of his power forever to remove the technical difficulty. To accommodate Downes he permitted him to build a stone fence across- • the located way, thinking, no doubt, the defendant would make no objection if the entrance to his premises was removed a few feet. We cannot say as matter of law that the fence across the way was a permanent obstruction simply because it was a stone fence. It may have been put there for a temporary purpose merely. For aught that appears the plaintiff can withdraw his license at any time, and require Downes to remove the difficulty. And furthermore, even if the plaintiff has deprived himself of the right to require Downes to remove the fence, because'the license being executed has become irrevocable, the plaintiff may buy of Downes the right to remove the fence, and the difficulty will then be removed. Neither is it any defence to this action, further than as affecting the amount of damages to be recovered, that during the time covered by the plaintiff’s declaration he was unable to use the way on account of the technical difficulty of entering upon the -defendant’s land. The acts committed by the defendant in plowing up and obstructing the plaintiff’s way over the defendant’s land were done under a claim of right, which if continued uninterruptedly for tlie space of fifteen years would ripen into a right, and destroy the plaintiff’s right of way. The hazard in which the plaintiff’s right is placed by such injurious acts presents a case' of substantial damage, and renders .it eminently just and proper and necessary that an action should be sustained, in order that the right may be vindicated, and its existence be preserved. The law upon this subject is well settled. Parker v. Griswold, 17 Conn., 288; Branch v. Doane, 18 id., 242; Bower v. Hill, 1 Bing. N. C., 549.

We see nothing in the acts of Smith upon his land lying south of the defendant’s land, in regard to the plaintiff’s right of way upon his land, that constitutes a defence to this action. . The acts were done without objection from the plaintiff’s grantor, who then owned the land now belonging to tlie plaintiff, and it seems that the provision made by Smith ■of a new way in tlie place of the old one upon his land was satisfactory to the plaintiff's grantor. These acts' constitute no abandonment of the way upon the defendant’s land. The way was used long afterwards. Neither do they furnish any justification or mitigation of the wrong committed by the defendant.

We do not advise a new trial.

In this opinion the other judges concurred.