Brice v. Randall ( 1835 )

Archer, Judge,

delivered the opinion of the court.

This cause comes upon bills of exceptions, without any evidence whatever.

Anterior to the act of Assembly of 1826, ch. 117, the court would have entertained the appeal, and would have determined the law of the prayers, upon the assumption, that there. Was evidence upon which the prayers might be bottomed.

The act of 1825, ch. 117, requires this court to review the points decided below, and if in the case in 2 Harr. & Johns. 376, the court were bound to consider, that evidence was offered below, which would have justified the action of the court, such a rule would and must lead us to the same conclusion here: and on the supposition, that there was evidence before the court and jury, the question presented, is sufficiently pointed and specific, to call for the judgment of this court.

The four first prayers, which constitute the subject of the first four exceptions, are wholly defective. The jury are called upon, should they find particular facts in these prayers to be true, to find for the plaintiff. But it is not put to the jury to find one of the leading matters in controversy, the obstructions laid in the declaration, without the finding of which, no matter what else they might find, the plaintiff was not entitled to be gratified in either of his applications to the court.

The fifth and sixth prayers are defective also. The jury might find all the facts therein stated to be true, and yet the plaintiff might not be entitled to recover.

The position of the fifth prayer is, that if the plaintiff should be found to have no right of way over two tracts of land, and has no other right of way, he shall have one of necessity through the defendant’s land. The consequence from the facts stated in the prayer, do not appear to us to follow. The plaintiff from the bare fact of being without a right of way, except over the defendant’s land, would acquire no right of way from necessity, by the rules of common law; and if under any possible circumstances, such a consequence could flow, it was incumbent upon the plaintiff, to show in evidence such circumstances, that a judgment might be found by us in relation to them.

The sixth prayer supposes a case, where the lines of H Bloomsbury Square, “ St John's College Green” “ Lewis Green, and “ Wells Water” and the lines of defendant’s land, surround the plaintiffs’ land, and that the grants were all anterior to the plaintiff’s deed, except the defendant’s grant, and that the defendant’s deed was subsequent to the plaintiff’s, and there was obstruction, then, &c.

This prayer does not raise the question argued by the counsel, as to the right of an individual obtaining from the State a grant of land, surrounded by the land of the State, having through such land a right of way from necessity, because it does not appear from the prayer, at what time the grant to which the right of way is alleged to be attached, was granted. The grant .under which the plaintiff holds, might be anterior to all the other grants, although his deed might be subsequent. In which event, if a right of way, under such circumstances, might be supposed to be incident to the plaintiff’s grant, over some portion of the surrounding public land, the plaintiff would not necessarily be entitled to it, over the defendant’s land, because supposing the right to exist, it was a right to a convenient way over any part of the grantor’s surrounding land, and that might be found, as well in the other surrounding lands, as in the defendant’s, because the prayer supposes all the lands subject to the selection, and assignment of this incidental grant of way; so, that if the law contended for, were conceded, the plaintiff has failed to shew the way he complains of being obstructed, was a convenient way at the time of the grant to him.

We cannot look to the deeds which were referred to in the pleas, as if they were evidence in the cause. The whole question of the right of way, and the obstruction, are put in issue. We can alone determine the question from the hypothesis put in the Drayer, and looking at that, we can perceive no error.

JUDGMENT AFFIRMED.