Whitehouse v. Cummings , 83 Me. 91 ( 1890 )

Virgin, J.

This is an action on the case for obstructing the plaintiff’s alleged right of way of necessity across the defendant’s land and a school district lotto a highway.

The defendant contends, contrary to the instruction to the jury, that the plaintiff was not entitled to a right of way of necessity over his grantor’s remaining land, for the reason that, when his parcel was conveyed to him, it was bounded in part by the land of strangers and not wholly by that of his grantor. We are of opinion, however, that his contention is contrary to principle and the overwhelming current of authority.

Such a right of way of necessity as the law recognizes and upholds, is found among the numerous applications and illustrations of the old, thoroughly established general principio that, the grant of a thing is presumed to include and carry with it, as an incident of the grant, whatever right the grantor had in connection with it and could convey by apt words, without which the thing granted would prove practically useless to the grantee, ft results from a grant or reservation implied from the existing circumstances in which the grantee,— or in case of a reservation, — the grantor, is thereby placed. When a landowner convoys a portion of his lot, the law will not presume it to have been the intention of the parties that the grantee shall derive no beneficial enjoyment thereof in consequence of its being inaccessible from the highway, or that the other portion shall, for like reason, prove useless to the grantor. This species of right of way, therefore, in the absence of anything to the contrary contained in the deed, becomes an incident to the grant indicative of the intention of the parties. Pomfret v. Ricroft, 1 Wm. Saund. 323, a note 6; Clark v. Cogge, Cro. Jac. 170; Warren v. Blake, 54 Maine, 276, 286; Trask v. Patterson, 29 Maine, 499.

Every right of way of necessity being founded on a presumed grant, none can be presumed over a stranger’s land and hence none can be thus acquired. Bullard v. Harrison, 4 M. & S. 387; Howton v. Frearson, 8 T. R. 50; Pernam v. Wead, 2 Mass. 202; Allen v. Kincaid, 11 Maine, 155; Collins v. Prentice, 15 Conn. 39; Seeley v. Bishop, 19 Conn. 128; Myers v. Dunn, 49 Conn. 71; Holmes v. Seely, 19 Wend. 507; Smyles v. Hastings, 22 N. Y. 217; Nichols v. Luce, 24 Pick. 102; Pettingill v. Porter, 8 Allen, 1; Schmidt v. Quinn, 136 Mass. 575; Oliver v. Hook, 47 Md. 301; Dunklee v. Wilton R. R. Co. 24 N. H. 489, 505; Pingree v. McDuffie, 56 N. H. 306; Cooper v. Maupin, 6 Mo. 624; Mead v. Anderson, 40 Kans. 203. When, therefore, property in land has been severed by voluntary or statutory conveyance, one portion of which is inaccessible except by passing over the other, or by trespassing on the lands of a stranger, a grant of a right of way of necessity is presumed between the parties. Godd. Ease. (Ben. Ed.) 268; Wash. Ease. (3d Ed.) 233 and oases supra. Any language in the opinion in Trask v. Patterson, 29 Maine, 499, which seems to militate with this doctrine can not be sustained.

But the way must be from the circumstances one of strict necessity and not one of mere convenience. Doliff v. B. & M. R. R. 68 Maine, 173; Stevens v. Orr, 69 Maine, 323; Stillwell v. Foster, 80 Maine, 333; Allen v. Kincaid, 11 Maine, 155. And as it results solely in consequence of necessity, it ceases or varies with the necessity. Holmes v. Goring, 2 Bing. 76; Rumill v. Robbins, 77 Maine, 195; Seeley v. Bishop, 19 Conn. 128; Viall v. Carpenter, 14 Gray, 126; Abbott v. Stewartstown, 47 N. H. 230.

Applying these principles to the facts it is seen that when Yeaton, owning the entire lot, conveyed the front parcel in 1870 to Kimball, he would have had no means of access from his homestead and the highway to the remainder of his lot,— presumably pasture and woodland,— provided the parcel conveyed extended across the entire width of the lot, unless the right to cross this parcel had been expressly or impliedly reserved, or unless he could pass over the land of the bounding strangers,— which latter alternative he could not claim without permission.

But the front parcel did not extend across the entire width of the lot. On the contrary, a narrow strip of land, extending along the south side of it to the school-house lot, was not included in the conveyance. This fact strongly indicates that this strip of land was intentionally excepted from the conveyance of Yeaton to Kimball, as for a way for the benefit of the remainder of the lot, so as not to burden the front parcel with a right of way across its entire length at any rate,— provided permission could be obtained to continue it across the two rod school-house lot. Moreover, that such was their actual and well-understood intention and concurred in by the school district, seems to. be made certain by the contemporaneous and long continued and unobstructed acts of all concerned; for the use of this way,— the only one in existence or use,— had been so constant and of so many years duration, including eight years of the defendant’s occupation, without any objection from any source until the defendant’s acts complained of, that it had become a well-defined way on the face of the earth.

2. Whatever might be urged against the soundness of the instruction concerning the school-house lot, had it been made applicable to the lands of all the surrounding owners over which the plaintiff could claim no lawful right without their permission, still as its application was confined to the school-house lot and the facts in this case, we think the defendant has no just cause of complaint,— especially as there was no way across the. defendant’s parcel other than the one which had been used so long and which, from the acts of the owners concerned and the acquiescence of the school-district, it may bo inferred was. agreed upon; and that no other way has been designated by the defendant. Rumill v. Robbins, 77 Maine, 193; Schmidt v. Quinn, 136 Mass. 575. Until the school-district interrupts the-plaintiff’s long-used way over its two rod lot, or the defendant designates some new way over his laud for the plaintiff’s use,— neither of which has been done,— we fail to perceive how the defendant can complain of the doctrine contained in the instruction. Moreover, assuming that the lane was intentionally reserved by Yeaton and Kimball as a way to and from the remainder of the lot, and the school-district should, at this late day, prevent any further use of its small territory, the plaintiff might, in the absence of any new way better suited to the interest and convenience of the defendant and designated by him, extend his old one across the southwest corner of the front lot next to the school-house lot.

So much of the first and second requested instructions, as is applicable to the facts in the case, was given in the charge, and the exceptions to the requested instructions, do not seem to be urged by the defendant.

Exceptions overruled.

Peters, C. J., Walton, Libbey, Emery and Foster, JJ., concurred.