Abbott v. Stewartstown , 47 N.H. 228 ( 1866 )

Nesmith, J.

It appears that the whole of lot No. 15, in Stewartstown, was many years ago owned by one Keysor. Iiis administrator conveyed one acre of this lot, upon which Keysor had erected a sawmill, in his life time, to one Bedel, with the privileges thereunto annexed. We infer, though the fact is not distinctly stated, that Abbott derived his title to the rest of the lot from or through the representatives or heirs of Keysor, but it is stated, that when the present highway was laid out, Abbott did own the rest of the lot, which surrounded the aforesaid acre, where the saw-mill was located. Previous to the laying out of the present highway, the travel passed across lot No. 15 to the sawmill, not in the place where the new highway was established.

Under the language of the grant from Keysor’s administrator to Bedel, it may be considered that something useful passed to the grantee. Where a thing is granted, the grant implies a right to all the means of enjoying it, so far as the grantor was possessed of those means ; 1 Saund. 322. Or, where the principal thing is granted, the incident shall pass. Coke Litt. 152 ; Comyn’s Dig. Grant E.

In Leonard v. White, 7 Mass. 6, the question was, whether under a grant of a mill, with all the privileges and appurtenances thereto belonging, the soil of a way passed, which had been immemorially used for the access to the mill from the highway; the court held that the soil did not pass, but that the way, as an easement, might be regarded as appurtenant to the mill. In Blake v. Clarke, 6 Greenl. 436, the court go farther, and decide that the term mill may embrace the free use of the head of water, existing at the time of the conveyance, as also a right of way, or any other easement, which has been used with the mill, and which is necessary for its enjoyment. This is a generous construction.

So in Duncklee v. The Wilton R. R. 24 N. H. 489, it was held that the property conveyed passes subject to all existing easements which are apparent and which result naturally from the relative situation of the land, and from the nature, construction, and intended use of buildings, mills, &c., as they are then usually enjoyed. The easement here may be considered as commencing by express grant, and its nature and extent are to be determined by the language of the deed, taken in connection with facts, usages, and the circumstances existing at the time of making it. 2 Wash, on Real Prop. ch. 1, secs. 6, 9, 14, 16, pp. 27, 28, 33, 36; New Ipswich Factory v. Batchelder, 3 N. H. 190; Stone v. Clark, 1 Met. 378.

There can be no question but that the owner of the acre of land and saw-mill had acquired, by grant, express, or implied, a right of way over and across the lot No. 15, owned by Abbott, to the extent and in the manner as usually enjoyed, subsequent to the purchase of the mill by Bedel. Has this right of way been in any way extinguished ? There is no evidence before us of any non-user of the mill by the owner, or its patrons, nor of any surrender of their acquired rights, or any acquiescence in the .proposed change. We are aware of but one mode of extinguishing this right of way by selectmen or road commissioners. This is pointed out in Hancock v. Wentworth, 5 Met. 446 : "If one has acquired a right of way to a certain building by enjoyment or user, and a public highway is laid over the site of the building, so as to cover the same, it will extinguish the right of way, that for which it was to be used, having been itself destroyed.” 2 Wash. R. P. sec. 34, p. 60. This experiment has not been made by the public authorities. In practice it might prove both inconvenient and expensive. The case finds that this new highway is not laid where those interested in the mill have been accustomed to pass over Abbott’s land. In the argument for the plaintiff the new highway is stated to run at right angles with the other way and in a different direction. The new highway takes from Abbott his lands that have in no way been hitherto dedicated to the public use, and so far as he is concerned, the highway appears to be a new and additional burden to his estate, for which, it appears to us, he should have adequate recompense. Again, the taking of the land for a public highway, instead of a private way, implies a new and larger user of the lands so taken, and generally imposes new liabilities and obligations, especially as relates to fencing, for which the land-holder should have indemnity.

Such are some of the reasons that bring us to the conclusion that Abbott did not derive any such peculiar advantages or benefits, by virtue of the laying out of this new highway, as would justify the road commissioners to make the proposed deduction of damages on the account of the reception by Abbott of equal gain elsewhere. We think he is entitled to the application of the common rule of assessing damages to land-holders in this State, as recognized by the statute law, and by our decisions in Kennett’s Petition, 24 N. H. 139; Petition of White Mountain Road Co., 35 N. H. 147; Carpenter v. Landaff, 42 N. H. 218. There should be judgment for $40 to Abbott. The petition was recommitted.

An amendment of the case was afterwards granted wherein it was admitted that both the plaintiff and the patrons of the saw-mill could be as well accommodated by the use of the new public highway as by the old way. Under this admission by the plaintiff, the court applied to the amended case the doctrine of Washburne on Servitudes, p. 164. Washburne there says, "so limited is the right of way by necessity in respect to its duration, that though it remains appurtenant to the land, in favor of which it is raised, so long as the owner thereof has no other mode of access, yet the moment the owner of such a way acquires by purchase of other land, or otherwise, a way of access from a highway over his own land to the land to which the way belongs, the way of necessity is then at an end.” Or, in other words, "the way of necessity ceases, as soon as the necessity to use it ceases.” Therefore, under the present admission of the plaintiff, and the original laying out, the petitioner is not entitled to an increase of his damages over and above the award of the selectmen, and the petition must be dismissed.