Myers v. Dunn , 49 Conn. 71 ( 1881 )

Pardee, J.

Peter Myers died in 1863, owning a piece of land bounded on the east and west by highways, on the north and south by proprietors; in that year his administrators conveyed the western end to one Carpenter, reserving a right of way over the same “ for the purpose of carting wood, &c.,” from the adjoining lot on the east, the “ right of way to be used at proper times and in a reasonable manner.” In 1865 they conveyed the central portion to one Kelly, together with the right of way across Carpenter’s land, and in 1877 Kelley conveyed the same to the defendant; the plaintiffs, heirs of Peter Myers, retained the eastern end. Over this the defendant passed; for this he was sued; his defense is that he had a right of way by necessity.

In his plea the defendant gives no more particular or definite description of the way or of the land upon which it rests than that it passes “ from and out of a certain public highway in the county aforesaid into, through, over and along the said close in which,” &c. The plaintiffs insist that the plea is insufficient by reason of this indefiniteness of description.

But we believe that this abbreviated form has so long been in actual use that it may be said now to have the sanction of this court; and as it is convenient, and not productive of injury, we are disposed to sustain it.

The reserved right to cross the Carpenter lot is limited to the single purpose of carting wood. The addition of the abbreviation “ &c.” in the reservation of a way for a particular and specified use over land conveyed, is by reason of its vagueness and uncertainty without meaning or effect. The language is the grantor’s; he is taking for himself something from the fullness of the grant made; he secures only what he names with certainty. Therefore the administrators upon Myers’s estate carved therefrom and conveyed to the defendant’s grantor a piece of land which neither touched any public way, nor had appurtenant to it any such right to pass over the adjoining land of strangers to and from a public way as would secure to him the most beneficial enjoyment of his' grant; they retained the locus in quo extending from the granted land to a public way. Here are all the requisite conditions for a way of necessity for all purposes over the reserved premises, there being no waiver by the grantee of his right to it.

When the administrators conveyed the land to the defendant’s grantor it was partly in wood, partly in pasture, and partly under cultivation, but without buildings. It was in this condition when the defendant purchased it, but he has since erected a dwelling house thereon. The plaintiffs claim that inasmuch as both the defendant’s grantor and himself bought wood and pasture land, having a way adapted to it in that condition, he is not now entitled to a way over the locus in quo for the increased necessities of a lot having a house upon it.

But this claim is without foundation. The owner of land has a right to the most profitable use, the most beneficial enjoyment thereof, subject to limitations not necessary here to be mentioned. He may erect buildings and raise grain upon, and dig ores beneath it; and when, by their conveyance to the defendant’s grantor the administrators imposed, in favor of the land granted, a way of necessity over the locus in quo, they are to be presumed to have intentionally done it for any or all of these purposes; and the law will declare that it may be used for all, for it desires and encourages proprietors to increase the value of their land by building houses upon and cultivating it.

Peter Myers, while owning both the defendant’s and Carpenter’s lots, was accustomed to pass from the former over the latter by a well defined path to a highway; after his purchase the defendant’s grantor used the same way until restrained by injunction; and not until 1877 did he or the defendant claim a way of necessity over the locus in quo; and the latter is so precipitous and rocky that a way over it for carts or wagons is impracticable. But these facts are not an answer to the defendant’s claim. He asserted his right to cross before the statute of limitations barred it, and although natural obstacles have hitherto prevented his enjoyment of it in as full and convenient a manner as he desired, yet he used it to the utmost practicable extent, with a claim to all possibilities. It is not for the plaintiffs to insist that because nature has made it difficult for the defendant to enjoy to the most beneficial extent that which they have granted and taken pay for, therefore he shall have no use at all.

The plaintiffs claim further, that inasmuch as both the defendant’s grantor and himself purchased land to which there was appurtenant a limited right of way over the Carpenter lot, of the precise character of which they had notice by their respective deeds, they are now to be presumed neither to have purchased nor intended to purchase any other, and are to be stopped from claiming the way of necessity over the locus in quo. We cannot assent to this proposition. Upon the conveyance of the piece of land inaccessible except for a single purpose, in the absence of an express agreement by the grantee to accept it in that condition, the law instantly laid in its favor upon the locus in quo the burden of an unlimited way of necessity for all legal uses; in the absence of such agreement the law will not presume that the grantee accepted in lieu of this a right less in extent and value; on the contrary it will presume that the grantor received payment for, and intended to convey, land which, in addition to this unlimited way, had another for a specified single purpose.

There is no error in the judgment complained of.

In this opinion the other judges concurred.