King v. McCully

The opinion of the court was delivered,

by Thompson, J.

— The right should be clear to warrant a decree, to be followed by injunction, to compel the keeping open of a way by one man over the premises of another. If doubtful, this of itself would be a sufficient reason to induce a chancellor to pause, until the right be established at law. ■ .

Here, however, the District Court must have come to the conclusion, not that the right was doubtful, but that there was no evidence at all of its existence as claimed by the appellant. "VYe have carefully examined the testimony, and entirely concur in that conclusion.

Neither the levy nor the subdivisions in which the property was sold, contain the slightest evidence of the existence of a road as appurtenant to Nos. 2, 3, or 20. Nor was there any evidence to show a road in fact. Mr. Negley, the owner of the property,, had made no dedication of a road either public or private, and no notice of any such was given at the sale. On the contrary, the levy included by description the locus of the claimed road.

It is true, Mr. Negley, in conveying to Simpson subsequently to the mortgage, reserved a right of way across-the ground sold to him, by and along Catharine Negley’s land to Hiland Lane. But as this title was subject to the mortgage, and as the sheriff’s sale vested title in the purchaser by relation to the date of the mortgage, it swept away all title under those deeds as well to the right of way as to the land. And as that reservation was not a public dedication, and could not be as against the interest of the mortgagee, and as the latter did not regard it, perhaps not knowing it, in the levy and sale, it simply goes for nothing. No road was in fact ever opened by Negley in pursuance of his reservation.

We are not called upon to discuss the evidence in the case, and content ourselves with announcing the foregoing, as the result of our consideration of the case as presented on this appeal.

Decree of the District Court affirmed at the costs of the appellant.