Mendell v. Delano ( 1843 )

Wilde, J.

The general question to be determined in this case is, whether the plaintiffs have proved a valid title to the right of way claimed over the defendant’s land. Both parties claim title under Joseph Hammatt; and the plaintiffs’ title to the right of way claimed is derived from a reservation in a deed of conveyance from said Hammatt to Zephaniah Eddy, from whom the defendant derives his title to the land and wharf, over which the right of way is claimed. The reservation is as follows : “ Reserving to myself, my heirs and assigns, to pass to and from said wharf to my land on the north side of said wharf.” Under this reservation, the plaintiffs claim a general right of way to pass from their own land, on the north of said wharf, to an open passage-way along the wharf to the public highway. To this claim several objections are made by the defendant’s counsel.

1. In the first place, it is objected, that the reservation is of a right of way in gross, which did not pass by Hammatt’s deed to Turner, and from Turner to the plaintiffs. But we think it very clear, that the right of way, reserved or created by the deed of Hammatt to Eddy, wras intended for the benefit of the lot on the north of the wharf, and so was annexed as appurtenant thereto, and passed by the conveyance of Hammatt to Turner, and from Turner to the plaintiffs. Indeed, it is expressly so reserved. The reservation is to Hammatt, his heirs and assigns, and for the sole purpose of passing to and from the wharf to the said lot on the north side thereof.

2. The second objection is, that Hammatt, being a tenant in common with other proprietors of the wharf, had no right to create a new right of way over the common property, to the prejudice of his cotenants. But without stopping to discuss the question whether a tenant in common can create such an incumbrance, so as to be binding on his cotenants—a question not material in the present case—we are of opinion that it is unquestionably binding on the parties to the deed creating the incumbrance, and those claiming under them; and that Ham matt, under the reservation in his deed to Eddy, had the samt legal rights as he would have had if there had been no reservation in his deed, and he had taken back from Eddy a grant of the right of way. We think, therefore, that it was rightly decided, at the trial, that the defendant took his estate subject to the reservation. The result, however, would be the same, if the reservation were only binding on Eddy and his heirs; for the defendant, after his purchase from Lewis, released all his right, title and interest, to the northerly lot, with all the appurtenances ; and this confirmed the plaintiffs’ title to the right of way, if a confirmation were necessary.

3. The remaining objection to the plaintiffs’ title may be considered more doubtful, as it depends on the construction to be given to the deed from Hammatt to Eddy, in respect to the extent of the right of way reserved, the language of which is not definite; and the intention of the parties is to be inferred from the nature of the reservation, and the facts and circumstances reported. The right claimed by the plaintiffs is a right to pass from their own land over to the wharf, and thence by the open passage-way, along the wharf, to the highway. The objection is, that the plaintiffs have no right thus to pass along to the highway. It is true that such a right is not reserved in express terms, but the language of the reservation is to be con strued according to the intention of the parties; and to ascertain that, we must consider the nature and object of the reservation.

The right reserved, is to pass to and from the wharf to the plaintiffs’ land on the north side thereof; but not to pass across or over the wharf from the plaintiffs’ land to any other place. The object therefore seems to have been, to reserve an access to the wharf for the transaction of business there; and if so, then the plaintiffs have the right to pass and repass to any part of the wharf which may be necessary for that purpose. Otherwise, they could not fully enjoy the privilege intended to be reserved. They may therefore use the open passage-way along the wharf, if necessary, but they have no right to use it as a thoroughfare to pass and repass to or from any other place.

Now it does not appear, by the report of the case, in what manner, or for what purpose, the plaintiffs had used, or claimed the right to use, this open passage-way. Nor is it now necessary to ascertain that fact; for if the plaintiffs had used the passage-way for purposes not intended by the reservation, that would not justify the defendant in obstructing the way; but his remedy would be by action. By a wrongful user, a party does not forfeit his legal rights, but is responsible only for damages.

It appears by the report, that the obstruction complained of was for laying timber along the wharf, and near the plaintiffs’ line, against that part of the plaintiffs’ land where there had been, for a considerable time, bars or a gate, and which place had been used as the place for passing from the plaintiffs’ land on to the wharf. This undoubtedly was an obstruction of the plaintiffs’ access to the wharf, and nothing appears in the report to justify it.

Judgment on the verdict.