Anderson v. Sweeney

The right of way in question was created and granted to the defendant by the same deed that created and granted to him another right of way which was before us in Sweeney v. Landers, Frary Clark, 80 Conn. 575,69 A. 566. A comparison of the language used by the grantor to define the two easements thus created by him in a single instrument, discloses nothing, to say the least, to indicate that it was intended to grant more restricted rights in the present instance than in the other. Neither does the finding disclose a state of facts connected with the situation of the properties concerned with the easement now under review, or involved in the surrounding circumstances, which tend to indicate such an intent. We are, therefore, led to conclude that the grant in the present case, like that in the other, was one of a general and unrestricted right of way for all purposes appurtenant to the tract of land in favor of which it was granted; that is to say, a right as an incident of the occupancy and enjoyment of said tract, as the dominant tenement, to pass and repass at pleasure for all lawful purposes in connection with such occupancy and enjoyment over the described strip which constitutes the servient estate, to or from any point in the boundary line between it and said tract, from or to any other point upon or within its boundary lines. Sweeney v.Landers, Frary Clark, 80 Conn. 575, 578, 69 A. 566.

Several of the reasons of appeal indicate that the plaintiffs labor under the impression that the judgment of the court was dictated by an interpretation of the grant as one which gave to the defendant the right to use the passway for other purposes of passage than those which were incident to the use and enjoyment of tract B. The record clearly discloses that its action was based upon no such misconception of the defendant's rights. All that it held was that the defendant's rights as the owner and occupier of B were not limited to the use of the passway in going to and for between B and Main Street, but that he was privileged as well to pass over the way at his pleasure in going to and from B from or to the entrance to his storage rooms opposite the north end of the way. There is here no recognition of a right as appurtenant to A, or in the defendant as a tenant in A. The right which was sanctioned was one which results from the easement as appurtenant to B, and which the defendant was entitled to enjoy solely by virtue of and in connection with his use and occupancy of that tract of land. It may have been that one result of his occupancy of both A and B was to lead to a more frequent use of, or to bring into existence an active use of, a line of travel over the strip subject to the way which had one of its termini in B and the other in A. If so, there was only a fuller enjoyment of a pre-existing right, and not an enlargement of it. His right to pass over the strip in passing to or from his land B, from or to the borders of A, and with the consent of the adjacent owner beyond them, has always been ample since the grant was made, however infrequent may have been the occasion to exercise it.

A similar misunderstanding of the scope and consequences of the ruling of the trial court appears in the brief of counsel, where it is said that "if the holding of the lower court is sustained then the principle announced would permit the defendant, Sweeney, to purchase an indefinite number of adjoining acres and annex the right to them by which the grantor of the way might be entirely deprived of the benefit of his land."

The brief also suggests that counsel have read the opinion in Sweeney v. Landers, Frary Clark, 80 Conn. 575,69 A. 566, as giving possible countenance to a proposition such as that attributed to the court below. We have already sufficiently observed that the ruling of the trial court furnishes no justification for the construction thus attempted to be given to it. It follows by necessary implication that it also furnishes no justification for the forecast of its possible consequences above noticed. Neither does the former opinion furnish support for either the one or the other. In the former case it was conceded that whatever right of way existed, it was one appurtenant to a particular piece of land fronting upon the passway. This concession involved the subordinate one that one of the termini of passage must be somewhere along this frontage. The contested question was whether the street exit furnished the only permissible other terminus, as the then defendant contended, or whether, as the then plaintiff, the present defendant, contended, such other terminus might, at the convenience of the person entitled to exercise the right, be any point along or within the boundary lines of the strip upon which the easement was imposed. This was the issue distinctly stated in the opinion. Sweeney v. Landers,Frary Clark, 80 Conn. 575, 578, 69 A. 566. We decided in favor of the latter contention. All the statements of the opinion were made with a view to the narrow issue before the court, and to express our conclusion thereon, and all that we held was that the servitude was not one limited to a user of the way by the owner of the dominant tenement for the sole purpose of communication between it and the street, but that he, as incident to his use and occupation of the dominant tenement, was entitled, at his pleasure, to seek other termini within or upon the borders of the way as points of communication with the dominant tenement. We did not hold that he could seek other termini, both without the bounds of the dominant estate, for the purpose of communication between them, or that he could by any acquisition of land annex to such acquisitions the right which he is entitled to enjoy as the occupant of B, or thus in any degree enlarge the right originally granted. On the contrary, this right, as long as it remains unchanged by grant or prescription, must continue what it was in its creation, and one appurtenant to B alone.

The plaintiffs cite cases in support of the proposition that the owner of the servient estate may erect fences along the sides of the way. Whatever right the plaintiffs as such owners might in the present instance have to erect a fence along the borders of their own land to the exclusion of the defendant therefrom, it is clear that they can have no greater right to thus exclude the defendant from passing to and fro across the border line between A, which he neither owns nor occupies, and the way, than they have to exclude him from passing to and for across the line at Main Street. The defendant's right to cross the former line is one which is dependent upon the permission of the owner or occupant of A, and not upon the plaintiffs' favor.

The case presents no question as to the defendant's right to use the way in connection with land other than B, by means of travel which passes over B in its route between the way and such other land. The only right of passage concerned is one of direct passage between B and A wholly over the passway. The cases relating to the former situation which have been cited are, therefore, not in point.

There is no error.

In this opinion the other judges concurred.