SECTION II.

OF WAYS OF NECESSITY.

1. Ways of necessity only exist over lands of grantors.

2. In what cases ways of necessity exist.

3. Same rule, if grantor reserves “a way of necessity."

4. Such ways exist only so long as the necessity continues.

5. Effect of owning adjoining land with a private right of way.

6. Executor may by grant create a way of necessity over his own land.

7. A tenant in common cannot create a way over common land.

8. Rights of way over parcels of land not dependent on priority of grant.

9. Whether a way passes, dependent on state of the premises.

10. Who is to designate the course of a way of necessity.

1. A WAY of necessity can only be created over one of two parcels of land of which the grantor was the owner when the

same was conveyed or reserved; and it arises in favor of [*163] *such parcel when the same is wholly surrounded by what

had been the grantor's other land, or partly by this and partly by that of a stranger. This arises from the effect of the grant or reservation of the land itself, and it is so far appurtenant to it as to pass with the land to another, provided he have no other way of access to the same.2

2. It would be simply absurd under the common law to pretend that A could, by any form of grant, create a servitude upon the land of a stranger in favor of land which he should convey to his grantee. But both by the civil codes of France and Louisiana, one whose lands cannot be reached from a highway, except by passing over the lands of another person, may pass in the shortest feasible distance over such third person's land, paying him an

1 [Taylor v. Warnaky, 55 Cal. 350; Love v. Stiles, 25 N. J. Eq. 381; Bass v. Edwards, 126 Mass. 445;] N. Y. Life Ins. & Tr. Co. v. Milnor, 1 Barb. Ch. 353, 366; Collins v. Prentice, 15 Conn. 39; 1 Wms. Saund. 323, note; Brice v. Randall, 7 Gill & J. 349; Marshall v. Trumbull, 28 Conn. 183; Kimball v. Cocheco R. R., 7 Fost. 449. See Trask v. Patterson, 29 Me. 499; Tracy v. Atherton, 35 Vt. 52; [Kuhlman v. Hecht, 77 Ill. 570.]

2 Clarke v. Rugge, 2 Rolle, Abr. 60; Woolr. Ways, 21; Jorden v. Atwood, Owen, 121; Howton v. Frearson, 8 T. R. 50; Lawton v. Rivers, 2 M'Cord, 445; Nichols v. Luce, 24 Pick. 102; Proctor v. Hodgson, 10 Exch. 824; White v. Leeson, 5 Hurlst. & N. 53; Wissler v. Hershey, 23 Penn. St. 333.

a 2 Rolle, Abr. 60, pl. 18; 1 Wms. Saund. 323 b, note; Bullard v. Harrison, 4 Maule & S. 387; Woolr. Ways, 21; Tracy v. Atherton, 35 Vt. 52; [Taylor v. Warnaky, sup.]

indemnity therefor. And as to the question, what constitutes a necessity sufficient to raise an implied grant of a right of way, some courts have been inclined to hold that it need not be absolute and irresistible, and that a mere inconvenience may be so great as to raise such an implication.2 But the same court held, in another case, that where the land conveyed was surrounded on all sides but one by water, and there was no access to it by land except over the grantor's land, it was not such a necessity as to raise an implied grant of a right of way over this land, and that mere convenience was not the test. And the law seems to be now settled beyond controversy, that in the language of the court in M'Donald v. Lindall: "The right of way from necessity over the land of another is always of * strict necessity, and [* 164] this necessity must not be created by the party claiming the right of way. It never exists where a man can get to his property through his own land. That the way through his own. land is too steep or too narrow, does not alter the case. It is only where there is no way through his own land that the right of way over land of another can exist. That a person claiming a way of necessity has already one way, is a good plea, and bars the plaintiff." [ED. And where one claiming a way of necessity had another way of reaching the road, but this way was obstructed by a slough and ditch, to mend which would cost about a thousand dollars, it was held there was no way of necessity."] A way of necessity, ex vi termini, imports a right of passage through the lands of another as being indispensable. Nor can one claim

a way by necessity because of its superior convenience over another way which he has.7

1 Martin v. Patin, 16 La. 57; Code Nap. §§ 682-685.

2 Lawton v. Rivers, 2 M'Cord, 445; Morris v. Edgington, 3 Taunt. 230.

But see Scriven v. Gregorie, 8 Rich. 158, convenience not sufficient.

3 Turnbull v. Rivers, 3 M'Cord, 131. See also Cooper v. Maupin, 6 Mo. 624; Anderson v. Buchanan, 8 Ind. 132.

4

* [Stevens v. Orr, 69 Me. 323; White v. Bradley, 66 Me. 254;] M'Donald v. Lindall, 3 Rawle, 492; Com. Dig. Chimin, D. 4; Staple v. Heydon, 6 Mod. 1; Seabrook v. King, 1 Nott & M'C. 140; Kimball v. Cocheco R. R., 7 Fost. 448; Leonard v. Leonard, 2 Allen, 543; Trask v. Patterson, 29 Me. 499; Ogden v. Grove, 38 Penu. St. 487; Hall v. M'Leod, 2 Met. (Ky.) 98.

5 [Carey v. Rae, 58 Cal. 159.]

Hyde v. Jamaica, 27 Vt. 460.

7 Dodd v. Burchell, 1 H. & Colt. 122; Pheysey v. Vicary, 16 M. & W. 496, per Alderson; Alley v. Carlton, 29 Tex. 78.

But in Lawton v. Rivers, the court say: "An inconvenience may be so great as to amount to that kind of necessity which the law requires," although it may not be "an absolute and irresistible necessity." 1

Or, as stated by another class of cases, a right of way exists only where the person claiming it has no other means of passing from his estate into the public street or road.2

The same rule applies where the grantor conveys land surrounding a parcel retained by him; he has a way of necessity over the granted land to the parcel retained.3

3. Nor would the rights of a grantor be any more extensive or different, though by the terms of his deed he reserved to himself "a way of necessity."

4. And so limited is the right of way of necessity in respect to its duration, that, though it remains appurtenant to the [*165] land in favor of which it is raised so long as the owner thereof has no other mode of access, yet the moment the owner of such a way acquires, by purchase of other land or otherwise, a way of access from a highway over his own land to the land to which the way belongs, the way of necessity is at an end; or in other words, a way of necessity ceases as soon as the necessity ceases, The necessity limits the duration of the grant, and this applies as well to a subsequent owner of the estate to which such way attaches, as to the first grantee in whose favor it was originally raised. It is not enough that it continues to be a way of convenience, if it ceases to be indispensable as a means of access to the land.5

1 2 M'Cord, 445.

2 Gayetty v Bethune, 14 Mass. 49; Grant v. Chase, 17 Mass. 443; Smyles v. Hastings, 22 N. Y. 217; Collins v. Prentice, 15 Conn. 39; Hyde v. Jamaica, 27 Vt. 443.

3 Clark v. Cogge, Cro. Jac. 170; Brigham v. Smith, 4 Gray, 297; Seymour v. Lewis, 13 N. J. 444; White v. Bass, 7 H. & Norm. 732.

4 Viall v. Carpenter, 14 Gray, 126.

5 Pierce v. Selleck, 18 Conn. 321; Holmes v. Seely, 19 Wend. 507; Collins v. Prentice, 15 Conn. 39; Morris v. Edgington, 3 Taunt. 23; Lawton v. Rivers, 2 M'Cord, 445; Viall v. Carpenter, 14 Gray, 126; Holmes v. Goring, 2 Bing. 76, 83; New York Life Ins. & Tr. Co. v. Milnor, 1 Barb. Ch. 353; Nichols v. Luce, 24 Pick. 102; Staple v. Heydon, 6 Mod. 1; White v. Leeson, 5 Hurlst. & N. 53; Seeley v. Bishop, 19 Conn. 128; Gayetty v. Bethune, 14 Mass. 49; Woolr. Ways, 72; Scriven v. Gregorie, 8 Rich. (Law) 158; Alley v. Carleton, 29 Tex. 78.

The above doctrine is adopted by the court of New Hampshire, in a case where one who owned a mill had a private way to the same over another's land, as a way of necessity. But the commissioners having laid out and opened a highway by the mill, by which he had free access to the same, his way of necessity was extinguished thereby.1

5. It would not be enough, however, that one having such way of necessity should acquire a parcel of land adjoining that to which such way belongs, to which there is access by a prescriptive right of way, since the owner of such a way could only use it as a means of access to the particular parcel to which it is appurtenant.2 [ED. Nor will the owner of land be deprived of a way of necessity because when he purchased the land there was appurtenant to it a right of way to the road for the sole and single purpose of carting wood. He is entitled to a way of general use.3]

6. A right of way will be raised between the parties to the transfer of one of two or more estates or parts of estates where the part granted or retained can be reached only over the other part; and this not only applies to cases of levies of executions upon parts of an estate, but has been held to extend so far, that if one as an executor sells land to which there is no means of access except over his own land, the purchaser may pass over the executor's land to that which he has purchased. So if an executor, in the execution of his trust to sell lands of his testator, sell a front lot to one, and then a rear lot to another, the * latter may, if necessary, pass over the front lot to reach [* 166] that in the rear of it. So if a creditor levy his execution upon his debtor's land in such a mode that it is necessary to pass over the part levied upon, in order to reach the other parts of the estate, a right of way over the same at once attaches to the other parts. But not if there is a way left from the highway to the back land which might be rendered feasible at no disproportionate cost.

1 Abbot v. Stewartstown, 47 N. H. 230.

2 New York Life Ins. & Tr. Co. v. Milnor, 1 Barb. Ch. 353; [Pingree v. McDuffie, 56 N. H. 306. Cf. ante, p. *32.]

[Myers v. Dunn, 49 Conn. 71.]

* Collins v. Prentice, 15 Conn. 39; Howton v. Frearson, 8 T. R. 50; Woolr. Ways, 20.

5 Russell v. Jackson, 2 Pick. 574; Pernam v. Wead, 2 Mass. 203; Taylor v. Townsend, 8 Mass. 411.

6 Allen v. Kincaid, 11 Me. 155.

7. But this would not give one tenant in common a right to create an easement of way over the common estate to land sold by him belonging to himself alone.1

8. In determining whether, as between two or more parcels, a right of way exists in favor of one over the other, as a way of necessity, it does not depend upon the order or priority of the conveyances. Thus, suppose lots A, B, and C, lying in the above order, A lying in front, and B being accessible only over A, and C only over A and B, all of which originally belonged to the same owner, and it cannot be shown whether the one or the other was granted first. It would make no difference in the result, for if it was C, a right of way was thereby created in its favor over A and B, and would pass therewith, so long as it remained one of necessity. If it was B, then, by the principle heretofore stated, a right of way was thereby reserved to the grantor from A over B to C, and would pass as appurtenant to those lots so long as the necessity continued, so that the same rights in favor of one over the other of said parcels exist, irrespective of the priority or order of the conveyance of the parcels.2

[* 167]

9. And whether a way passes as one of necessity, with the parcel of land to which it may have belonged, depends upon the condition of the estate at the time of the conveyance. Thus, where there were two parcels of land, upon one of which there had once been a barn to which there was a way of necessity over the other parcel, and the owner of the estate suffered the barn to go wholly to decay, it was held that the right of way over the other parcel of land thereby became extinct, and ceased to be appurtenant to it.3

10. In respect to who shall designate the way which is to be used by the grantee, where it is claimed as a way of necessity, it would seem that, if a way had been in use for the benefit of such parcel before its conveyance, it would be understood that the same would be to be continued if reasonably convenient. But if it is

to be designated anew, it seems that the right of selecting the

1 Collins v. Prentice, 15 Conn. 39; Gayetty v. Bethune, 14 Mass. 49; Marshall v. Trumbull, 28 Conn. 183; Brice v. Randall, 7 Gill & J. 349; 1 Wms. Saund. 323, note; Crippen v. Morse, 49 N. Y. 63.

2 Pinnington v. Galland, 9 Exch. 1; White v. Bass, 7 H. & Norm. 732. Gayetty v. Bethune, 14 Mass. 49; M'Donald v. Lindall, 3 Rawle, 492. Pinnington v. Galland, 9 Exch. 1.