Oliver v. Hook , 47 Md. 301 ( 1877 )

Alvey, J.,

delivered the opinion of the Court.

The appellant brought his action in the Court helow to recover for the alleged obstruction of what he claims to he his private right of way over the land of the appellee.

There is no question arising on the pleadings that we are required to decide. The questions presented here arise solely on the prayers :offered hy the appellant, which were rejected, and the instruction of the Court that there was no evidence before the jury upon which they could find a verdict for -the plaintiff.

It appears that, in 1847, Charles N. Jessop, being owner of a tract of land, of about 220 acres, conveyed to one John Minnick 15J acres, part of such tract; and that the part so conveyed was- surrounded by other portions of the land of the grantor, and the lands of one Joshua F. Cockey. The appellant claims under Minnick, and now owns and occupies the land that was conveyed to the latter by Jessop in 1847.

In 1850, Charles N. Jessop sold the residue of the tract of 220 acres to William Jessop, and the latter sold the same soon after to Feast, and, in 1865, Feast sold off a portion to the defendant Hook, and subsequently sold the residue to Presstman.

It also appears, and is indeed conceded, that no part of the land of Charles N. Jessop, nor of that sold to Minnick, bounded upon any public road or highway ; but access to the public highway from said land was had by going over private ways through the land of a neighbor. The way claimed by the appellant, as described in his declaration, is a way from the land embraced in the deed to Minnick, “over the land of the defendant, and then through a private road, leading out to the present highway leading from Warren Factory to the York road.”

It is contended hy the appellant, and at the trial below he offered proof tending to show, that, at the date of the deed to, Minnick, the only lawful access to the land conveyed was over the contiguous lands of the grantor, “and that at the time of said deed, the grantee Minnick, who had previously been a tenant to Jessop, the grantor, used a way across the contiguous lands of his grantor, which was opened into the grantee’s land through a pair of bars, and thence passed across the land of the grantor, with a certain private lane or road, to a certain point, and thence across the lands of Joshua F. Cockey, to the public road, which leads from the York turnpike to the Warren Factory.” The appellant also offered evidence tending to show, that at the date of the deed to Minnick this way was distinctly marked by tracks of men and vehicles, and that it continued to be used for the purpose of ingress and egress to and from the land now owned by the appellant, until 1850, when Charles N. Jessop sold the residue of the tract to William Jessop; and also that the appellee, after his purchase in 1865, for his own convenience, changed, in part, the existing way, where it passed over his lands; and then gave evidence to show “that there never was any other lawful road or way to said premises than the one in question, and that said way to and from said premises had been used from the time of the purchase by Min-nick by all the successive owners and occupants thereof, until he was obstructed and prevented from using said way over the land of the defendant.”

Upon this state of the case, as presented by the appellant, his counsel contend that, inasmuch as the way was in existence and apparent at the time of the making of the deed to Minnick, it passed as incident and appurtenant to the land conveyed, by force and operation of the terms employed in the deed. But we are not of that opinion.

• The deed is for a specific piece of land, being parcel of a larger piece held and owned by the grao tor, and described by metes and bounds. In such case, in the absence of apt and express terms, no specific way outside the limits of the land granted, if not properly an existing easement, will pass as appurtenant. The only words in the deed to Minnick that could possibly be relied on to convey the right of way in question are, “ all and every the rights, privileges, appurtenances, and advantages to the same belonging, or in any wise appertaining.” If there was a way belonging to the estate, as a pre-existing easement, such way would pass by force of these terms, or even without the use of them; but such terms used in a conveyance of part of a tract of land, as in this case, will not create a new easement, nor give a right to use a way which had been used with one part of the land over another part, while both parts belonged to the same owner, and constituted an entire estate. A party cannot have an easement in his own land ; as all the uses of an easement are fully comprehended and embraced in his general right of ownership. Whalley vs. Thompson, 1 Bos. & Pul., 371 ; Gayetty vs. Bethune, 14 Mass., 49 ; Grant vs. Chase, 17 Mass., 443 ; Pheysey vs. Vicary, 16 M. & W., 483 ; Worthington vs. Gimson, 2 El. & El., 624; and Thompson vs. Waterlow, L. Rep., 6 Eg. Cas., 36. If apt and appropriate terms had been used in the deed, such as “with the ways now used,” or “ used with the land hereby conveyed,” they would have passed the right to such ways as had been actually used in connection with the part granted; not, however, as existing easements, but those terms would have operated to create new easements, for the benefit of the estate granted. Washb. on Eas., (3rd Ed.,) 59.

The general principle is, that no right in a way, which has been used during the unity of ownership, will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo. Pearson vs. Spencer, 1 B. & S., 571.

In Gale on Easements, 81, it is said that “ upon the severance of an heritage a grant will be implied, first, of all those continuous and apparent easements which have in fact been used by the owner during the unity, and which are necessary for the use of the tenement conveyed, though they have no legal existence as easements; and, secondly, of all those easements without which the enjoyment of the several portions could not be had at all.” McTavish vs. Carroll, 7 Md., 360.

This is a very just and beneficial principle in those cases to which it is properly applicable, and it has been fully sanctioned in this State; but it would seem to be well settled that it does not apply to the case of an ordinary way, like the one in controversy here, not being at the time an existing easement. Grant vs. Chase, 17 Mass., 447-8 ; Worthington vs. Gimson, 2 Ell. & Ell., 626 ; Pearson vs. Spencer, 1 Best & S., 583-4 ; Dodd vs. Burchell, 1 H. & Colt., 113, 120. Hence the case of Janes vs. Jenkins, 34 Md., 1, relied on by the appellant, where the right involved was a claim to light and air, cannot be taken as an authority in this case. In that case, the principle just cited from Gale on Easements, 81, was given full application; but, as we have said, the authorities do not warrant the extension of that principle to the case of a claim of an ordinary way like the present.

It is true, as contended by the appellant, that where one party deeds to another a parcel of land surrounded by other lands, and there is no access to the land thus conveyed, except over the lands of the grantor, the latter gives the grantee a right of way by implication, over his own land to that conveyed by him. But this way of necessity, is a way of new creation by operation of law, and is only provisional; for it is only brought into existence from the necessities of the estate granted, and continues to exist only so long as there may be a necessity for its use. If, therefore, the grantee acquires a new way to the estate previously reached by the way of necessity, the way of necessity is thereby extinguished. Pomfret vs. Ricroft, 1 Wms. Saund., 323, notes; Holmes vs. Goring, 2 Bing., 76. And where a party has a right of way of necessity over another’s land, he may, while the way remains undefined, pass over any part of the land, in.the course least prejudicial to the owner, and passable with reasonable convenience. It is the right, however, of the owner of the land to designate the particular course of such way, being bound to designate a convenient course ; and if he neglects so to do, the party entitled to the way may select the tract for himself. 2 Greenl. Ev., sec. 658; Holmes vs. Seeley, 19 Wend., 507. And a right of way of necessity can only be raised out of the land granted or reserved by the grantor, and never out of the land of a stranger. Pomfret vs. Ricroft, 1 Wms. Saund., 223, note 6; 2 Washb. Law Real Pro., 282.

Whether the appellant’s claim to the right of way through the land of the appellee can be supported as alleged, either as a way of necessity, or as a way acquired by prescription or user, as he contends it may, conceding all other obstacles to be removed, depends upon the right or interest to which he has shown himself entitled in that portion of the way that leads through the private road over the lands of Joshua E. Cockey to intersect the public highway. The termini of the way are material to be proved as alleged; and if the proof stops short of either it is fatal to the right claimed. Wright vs. Rattray, 1 East, 377; 2 Greenl. Ev., sec. 659. If, therefore, the appellant has no such interest in the private road through Cockey’s. land to the public highway as to maintain his right of passage thereover, to which he alleges himself entitled, he bas failed to present a case upon which he can recover in this action. To meet this difficulty in the case, it is contended on the part of the appellant, that he is entitled to an easement in this particular way over the land of Cockey, acquired by long and continuous user by himself and those preceding him in the ownership and occupancy of the land now held hy him. But, before referring to the proof, let us see what elements enter into the definition of an easement. Gale on Easements, p. 5, says that an easement may be defined to be a privilege without profit, which the owner of one neighboring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the dominant owner.” Now, taking this definition to be correct, the proof on the part of the appellant utterly fails to show that any such right was ever acquired. In order to establish the right to the way by user, the evidence should show that the use and enjoyment of the way had been continuous and uninterrupted for at least twenty years before the obstruction complained of; and that such user was adverse, that is, under a claim of right, with the knowledge and acquiescence of the owner of the land ; and the burden of proof is on the party claiming the easement. 2 Greenl. Ev., sec. 539; Wright vs. Freeman, 5 H. & J., 477. To say nothing of the defects in the proof to make out, and justify a jury in finding, an adverse user of the way over the land of the appellee, such as to create an easement, there is nothing whatever in the evidence, as reported in the bill of exception, that could have warranted the jury in concluding that an easement had been acquired by the use of the way over the land of Cockey; and hence the Court was well justified in instructing the jury that there was no sufficient evidence before them upon which they could find for the plaintiff. There was literally no evidence whatever of any claim of right to uso this part of the way ; but, as shown by the evidence, the user has been by sufferance and permission only, which was but a license, revocable at pleasure, and that conferred no right in the way. It simply relieved the appellant from being a trespasser for passing over the road, and nothing more. Bolch vs. Smith, 7 H. & N., 736, 745.

(Decided December 13th, 1877.)

We find no error in tbe ruling of the Court, and therefore affirm the judgment.

Judgment affirmed.