Smith v. Sponsable ( 1900 )

SMITH, J.

The plaintiffs claim under the Hough deed. The right of way south of the bridge is, the south part thereof, upon land which was owned by the three in common; the north part thereof, upon the sawmill lot, which was owned by Hough alone. The learned judge at special term has found that the sawmill lot belonged to the same three parties who owned the woolen-mill lot, and has found that the right of way intended to be given was a right of way three rods wide, extending not only from North Division street to the bridge, but north of the bridge around to the north side of the factory, over the land which was formerly owned by Hough alone. This finding of fact as to the ownership of the sawmill .lot is evidently an inadvertence, as there is no claim upon this argument that Smith and Adams had any interest whatever in that lot. The first deed to the woolen-mill lot was given by Riggs. The right of way which he assumed to give clearly could not have been north of the bridge, as the property east of the woolen mill and north of the bridge was not his property. Then follows the deed from Hough, who did own the property east of the woolen mill and north of the bridge. This deed, it will be noticed, reserves the right to pass and repass from North Division street to said woolen factory on the north side of a piece of land which was south of the creek, “where there is now a private road used for that purpose, and thence across the factory bridge as it now lies; said right to travel not to extend over a strip of land above three rods wide.” It would seem clear that the right of way assumed to be given was the right of way south and east of the bridge from the bridge to North Division street, and “thence across the factory bridge.” This property was just across the bridge. The mill could have been used from that point. This deed from Hough does not of itself clearly pass any title to this road north of the bridge and east of the woolen factory. The same consideration appears in the deed from Hough as in the deeds from the other parties, and the presumption is rather against the fact that he was deeding a substantial part of his land more than was included in the other deeds. At the time, however, that these deeds were made, it appears from the evidence that the front door of the woolen mill was upon the north side, and it was customary to drive to the woolen mill by a roadway along the east thereof, and upon this property of Hough. This continued as long as the mill was used, for upwards of 40 years, and constitutes, in our judgment, a practical construction of this deed, as giving a right of way north of the bridge along the east side of the mill around to the front door. In 1860 or 1861 an addition was built upon the front of the mill, which rendered it the more necessary to go upon the lands of Hough in order to reach the front door of the mill; and that was acquiesced in by the defendant’s grantors for over 30 3'ears. Assuming, then, that this deed, as practically construed by the parties, granted a right of way over the lands of Hough around to the north of the mill, the question arises as to what is the extent of the right of way given. It will be noticed that the right is to pass and repass, and the right of travel is not to extend over a strip of land above three rods wide. The bridge itself is about 13 feet wide. The northerly line of this right of way, which has now become a public street, comes to the southeast corner of the bridge. If that line be the northerly line of this right of way, then at the bridge the right of way is not three rods in width. The deed does not grant in terms a right of way three rods wide, but three rods is the limit which can be asked or claimed by the grantees. Within that limit we apprehend the width of the right of way must be regulated by a reasonable necessity. Considering the right as one to pass and repass only, and the wording of the grant that it should not exceed three rods in width, a reasonable interpretation of the grant would not require the right .of way to be three rods at the bridge, nor any wider than the bridge itself, which is shown to be substantially the same as when the right of way was granted. It follows, then, that the north line of this right of way should properly be extended to the southeast corner of the bridge, and that the land between that line and Zimmerman’s creek on the north was not included in the right of way granted. Upon the north of the bridge there is a space between the western point of the barn and the hitching post of about 20 feet, and north of the barn there seems to be all the space necessary for turning around. Inasmuch as the title to this right of way north of the bridge is found by practical construction rather than clear grant, we think the court should construe with some liberality to the defendant the limit of that, right of way as to what is. demanded by reasonable necessity. There seems to be abundant room for teams to pass west of the barn as it is now located, and we see nothing in the reasonable necessity of the situation calling at that place for a broader right of way, or calling for the defendant to remove that barn. Our conclusion, therefore, is that the judgment cannot be sustained.

Judgment reversed, with costs to appellant to abide event of action. All concur, except PARKER, P. J., who dissents.