DeRochemont v. B. & M. Railroad , 64 N.H. 500 ( 1888 )

The plaintiffs claim damages for the defendants' obstruction, by their road-bed, of a water-way and drive-way between a part of their farm and the Piscataqua river, and for not maintaining farm-crossings in suitable repair. The alleged neglect to keep the farm-crossings in suitable condition raises no question of law.

The land on which the railroad is constructed across the plaintiffs' farm was conveyed to the railroad by one of the plaintiffs by a deed of warranty March 15, 1873, by the following description: "A certain piece of land situated in said Newington being the same upon which said railroad has been located through my land and which is bounded and described as follows: Commencing at a stake in the central line of the easterly track of said railroad and in the division line between myself and Stephen Paul and running across my land on said central line south forty-five east a distance of seventeen hundred and twelve feet to a stake in the division line between myself and Richard Pickering. Said strip being bounded by two lines at unequal distances from said centre line, as shown by the accompanying plan which forms part of this instrument, and containing three acres and sixty-two one hundredths of an acre. And it is hereby agreed that the grantee shall build and maintain two grade crossings across the land hereby conveyed, and no more." No mention is made of the creek or inlet where the alleged obstruction exists, and there is no reservation of a water-way over it or a drive-way by the side of it. The deed purports to convey all the right, title, and interest of the plaintiffs in the premises described by metes and bounds, with covenants of warranty against all incumbrances. If there is any question whether the railroad took a fee or only a right of way for the construction and operation of a railroad, it is immaterial to the determination of the questions raised in the case. Whatever interest passed by the deed was conveyed with covenants of warranty against incumbrances, and the construction of the railroad constitutes the obstruction complained of.

The plaintiffs claim that the ways which they allege are obstructed by the defendants' railroad have become annexed to the part of the farm retained by them, as a right or easement, by long use by the owners of the farm. A land-owner cannot have a right of way through his land independent of his right to the land. Ownership of the soil gives absolute dominion over it, and the right to appropriate every part of it to the owner's use. He may have a way over his land wherever he chooses, and may use it, vary it, and abandon it at his will, but such way is not a right or easement independent of the title to the land. Barker v. Clark, 4 N.H. 380; Clark v. B. C. M. Railroad, 24 N.H. 114. As the land on which the railroad is built was a part of the farm until it was conveyed by the plaintiffs to the railroad corporation, no right of way could be acquired by use by the owners of the farm, and the alleged ways had no legal existence at the time of the conveyance. If a way in fact existed, it was a part of the realty, an incident to the land, and passed with it.

The plaintiffs do not claim a way of necessity, and if under any circumstances there could be a reservation of a way by implication, such implication is excluded by the express stipulation in the deed that the grantee "shall build and maintain two grade crossings across the land conveyed and no more."

A way, whether public or private, is an incumbrance upon land. Prichard v. Atkinson, 3 N.H. 335; Haynes v. Stevens, 11 N.H. 28. It is a legal obstruction to the exercise of that dominion over the land to which the lawful owner is entitled. Kellogg v. Ingersoll, 2 Mass. 101; Blake v. Everett, 1 Allen 248; Wetherbee v. Bennett, 2 Allen 428; Butler v. Gale, 27 Vt. 742; Hubbard v. Norton, 10 Conn. 422. The plaintiffs having conveyed to the railroad with covenants of warranty against incumbrances are estopped to deny the truth of the covenants that the premises are free from any incumbrances except what are reserved in the deed, and consequently they are estopped to claim damages for the obstruction of a way which they have covenanted does not exist. Wark v. Willard, 13 N.H. 389, 395; Gotham v. Gotham, 55 N.H. 440; Fletcher v. Chamberlin, 61 N.H. 438, 477, 478.

Case discharged.

BINGHAM, J., did not sit: the others concurred.