Frazier, Administrator v. Berry , 4 R.I. 440 ( 1857 )

Brayton, J.

The first exception of the defendant involves the construction of the deed offered in evidence,/ and of the reservation contained therein.

The defendant’s counsel objected to the passing of the deed to the jury in support of the declaration, on the ground, that the reservation is not of a way from the whole lot retained by the grantor, but of a way from the shop only, or, at most, from so much of the lot as the blacksmith’s shop covered; and inasmuch as the plaintiff alleges a right of way from the whole of said lot, that the deed is not evidence of such a right, but of a more restricted right only. Thus, the question here raised is, whether the reservation in the deed is of a way from and to the whole of the grantor’s lot, or of away from and to the blacksmith shop only. The reservation is of a way “from the grantor’s now blacksmith’s shop,” to the highway aforesaid, “ for the grantor, his heirs and assigns to pass and iepass, at all times, forever hereafter. Had the words, “ the grantor’s now blacksmith’s shop,” been omitted, there could have been no question as to the extent of the reservation; that it was a way from all the premises retained by the grantor; and the question is, how far these words limit this right, or whether they limit it at all. The reservation is not of a personal right to the grantor, but whatever the right is, it is one appurtenant to the estate which the grantor then had, and is to enure to his heirs and assigns, owners of that estate. It is to exist, “ at all times forever hereafter.”

Had it been intended by the parties that the right should be appurtenant to the shop only, or to the land only which it covered, there might have been added, after heirs and assigns, tfre words, “ owners of the shop,” or, “ owners of the land covered by the said shop.” This would clearly have limited the right as the defendant claims.

This right of way is to continue forever hereafter. It could not have been contemplated by the parties that a blacksmith’s shop should have a very long continuance, and certainly not so long as would be implied from the terms here used. But the words are, from my now blacksmith’s shop, implying an expected change, by which the now blacksmith shop should cease to exist. If these words are to limit the right at all, they must limit it in point of duration to the existence of this particular building, and could not be extended to another, though in the saibe place. This, we think, would be quite too strict a construction of the terms of the deed. But the words seem rather to have been used for the purpose of defining the terminus of the way, at the land of the grantor; and the shop is here referred to as a monument to mark that terminus. It is referred to as any other fixed object might be; as a rock, post, or stone set in the ground, which might serve to mark the point at which the way was to commence, and where the grantor might pass from his own land, and enter upon the land of the grantee, for the purpose of passing to the highway described.

The second exception of the defendant raises another question. The court ruled, that under the reservation of a convenient way, not defining the track or path to be travelled, it was competent for the parties to it, by agreement, to locate the way and define the path; and when so located, it was not competent for one of the parties, without the consent of the other, to change it to another place; and further ruled, that a continued use for fifteen years of a particular, definite track, for the purpose of passing and repassing, was evidence of such an agreement ; and these rulings were made in view of the fact, that the blacksmith’s shop had been removed to another position on the grantor’s land.

Upon the construction which we have given to this reservation, it is not necessary to consider the point which the defendant here makes, since it is based upon the assumption that the way reserved was a way appurtenant to the shop only, and for its use ; and that upon its removal, the grantor and his assigns had still a right of way to it, wherever it might be located, as distinct from the land, giving him the right to pass and repass directly to and from the same to the highway, and not circuitously, by the old path.

The two points ruled by the judge who tried the cause, are not objected to, as being unsound as general law, as indeed they cannot be, resting as they do, upon the soundest principles and upon settled decisions; but the objection is made rather to the application of the rules announced to the facts of this case. Now we do not see that the fact of the removal of the shop to another point, distant from the way located by the parties and used by the plaintiff’s intestate, in anywise changes the aspect of the case, from what it would have been if it had remained in its original position. The way reserved is a way to the highway, from the point where the shop stood at the time of the grant; that point was the terminus of the way, which is not changed by removing the building which marked it. The removal of a monument or landmark cannot change the line which the parties have established.

Motion for new trial denied!, with costs.