place over which it shall be used lies with the owner of the land over which it is to pass, provided, upon request, he shall designate it in a reasonable manner, and he may so do it as to be least inconvenient to himself. But if the owner of the land fail to designate such a way when requested, the party who has the right to use it may select a suitable route for the same, having regard to the interest and convenience of the owner of the land over which it passes. And when he has once selected the way, he may not change it at will, but must be confined to the way thus selected. And in this respect it seems the law differs between ways claimed by necessity and * those claimed by [* 168] grant, where there is no designation made of the particular part of the tenement in which it is to be exercised. In the latter case, the selection is left to the owner of the dominant tenement, but he must not make such a selection as would unnecessarily occasion detriment to the servient tenement. And the same rule would apply to aqueducts.3 Where the grantor of land, who had reserved a right of way over it within certain limits, opened it in a direction not authorized by the reservation, and he was enjoined from using it, it was held he might make a new designation of the way.1 1 Capers v. Wilson, 3 M'Cord, 170; [Schmidt v. Quinn, 136 Mass. 575;] Russell v. Jackson, 2 Pick. 574; Holmes v. Seely, 19 Wend. 507; 2 Rolle, Abr. 60, pl. 17; Smyles v. Hastings, 24 Barb. 44; Pearson v. Spencer, 1 B. & Smith, 584. 2 Nichols v. Luce, 24 Pick. 102; Morris v. Edgington, 3 Taunt. 23; Holmes v. Seely, 19 Wend. 507. There are rules in the French law as to which of several adjoining estates, one having a right of way, by necessity, from a highway to a parcel of land surrounded by the lands of others, shall pass over. It is not a matter of mere election on his part. 2 Fournel, Traité du Voisinage, 301. 3 Burge, Col. & F. Law, 441. [238] SECTION III. OF WAYS CREATED BY GRANT. 1. Ways may be created by express or constructive grant. 3. O'Linda v. Lothrop. Grantor estopped to deny a way. 4. Effect on private rights of discontinuing a highway. 5. Smyles v. Hastings. Right of way created by plans of premises. 6. Child v. Chappell. Easements passing on partition of estates. 7. Effect of bounding land by a contemplated street. 8. When bounding by a street conveys a right of way in it. 9. How far bounding by a street implies any width thereof. 10. Osborn v. Wise. How far parol may explain what is granted. 11. Emerson v. Wiley. Constructive grant of a general way. 12. Hartshorn v. South Reading. General grant limited by nature of use. 13. White v. Leeson. Case of way not passing, though on a plan. 14. Morris v. Edgington. 15. Kirkham v. Sharp. 16. Salisbury v. Andrews. Two ways used by grantor, which passes. Grantor of way limited to same use as grantee. 17. Lewis v. Carstairs. Way for one purpose may not be extended. 18. How far a way passes with the several parts of an estate. 19. Grant of a right of maintaining a bridge, held to be of a right of way. 1. In considering the subject of ways created by grant, it chiefly remains, after having treated already of what will [* 169] pass * by implication, with the principal thing granted, to state and apply the rules which courts have adopted for limiting and defining the nature, use, and extent of such ways as pass by grants of lands with which they are to be enjoyed. These may be defined by the express terms of the deed by which they are created, or they may be ascertained by construction, having reference to the state and condition of the principal estate granted. 2. As a general proposition, a grant of an estate with "ways heretofore used," or "ways in use," or the like, would pass all existing ways in actual use at the time, whether the same are used by the grantor over other parts of his own estate, and so are not properly appurtenant to such granted parcel, or are appurtenant to the same, by having been in use over the land of another. But a mere reference in the deed to an intended way, without an express 1 Plant v. James, 5 Barnew. & Ad. 791; Harding v. Wilson, 2 Barnew. & C. 96; Staple v. Heydon, 6 Mod. 1. But see Thompson v. Waterlow, L. R. 6 Eq. Cas. 36. grant, will not pass such way.1 And where a right of way is granted, but its locality and duration are not defined, it may become fixed by use and acts of acquiescence of the parties. And where there are two ways which will answer the description in the grant, the grantor's declaration may be admitted as evidence as to which was intended.2 And when once fixed by user, it may not be changed except by a sufficiently long acquiescence therein by the parties in interest.3 Accordingly, where one in his deed reserved a right of way to a well, and made use of one for nine years, and then adopted a new one, and used it for two years, it was held that he had no right thus to change what had become an accustomed way by user. And this applies to an aqueduct as well as a way. And if the deed granting the way defines its course, &c., it is not to be controlled by parol testimony as to what the parties intended, or to contradict the terms of the grant.6 But where both parties claimed under one remote grantor and grantee, and the question was as to the width of the way, reference was had to the deed of the original grantor, who created it.7 3. Among the numerous illustrations which are to be found in decided cases, of ways passing either by being referred to in deeds and taking effect by way of estoppel, or by having been laid down upon plans used by the parties, or by having been actually in use when the grant of the principal estate was made, are the following. 1 Harding v. Wilson, 2 Barnew. & C. 96; Roberts v. Karr, 1 Taunt. 495; Hopkinson v. McKnight, 31 N. J. (Law) 427. [A reservation in a deed of a "road" of a certain width for the grantor over the land granted is a reservation of an easement of way, not of a strip of land. Kister v. Reeser, 98 Penn. St. 1; Cf. Harris v. Johnson, 31 N. J. Eq. 174.] 2 French v. Hayes, 43 N. H. 32; Osborn v. Wise, 7 C. & P. 761. See also Krant's Appeal, 71 Penn. St. 64. The same rules apply to artificial watercourses or drains across land. Galloway v. Wilder, 25 Mich. 98, 99. [Warner v. Railroad Co., 39 Ohio St. 70; Bangs v. Parker, 71 Me. 458; Marsh v. Haverhill Aqueduct Co., 134 Mass. 106;] Bannon v. Angier, 2 Allen, 128; Wynkoop v. Burger, 12 Johns. 222; French v. Hayes, 43 N. H. 32; Osborn v. Wise, 7 C. & P. 761; Jennison v. Walker, 11 Gray, 426; Jones v. Percival, 5 Pick. 487. 4 Garraty v. Daffy, 7 R. I. 476. 5 Jennison v. Walker, 11 Gray, 426. Shepherd v. Watson, 1 Watts, 35; Ballard v. Dyson, 1 Taunt. 279, 288. 7 Brown v. Stone, 10 Gray, 65. [* 170] * In O'Linda v. Lothrop, the grantor, owning a parcel of land, sold the north part of it, and bounded the part sold on the south by an intended street where none existed, and sold the south part, bounding it north by a street. Nothing, however, was said in the deed of a right of way over the street. But it was held that the grantor was estopped to deny that it was a street or way to the extent of the land so referred to. It was an implied covenant on his part that there was such a street.1 But in the case above stated, had there been an existing way a part of the length of the line of the granted premises, but not the whole of it, it would be considered as limiting the grant to the existing way, and not as extending the covenant as to the way to the whole length of line of the premises.2 But where one sold land, bounding it on one side by a certain street, and it turned out that the street, as laid out, did not extend along in front of the granted premises, although there was a street running in the direction of the premises, but ending at the line of the parcel granted, it was held that the grantor was estopped to deny that it ran along the premises, or that the purchaser had a right of way therein, although the public had no easement therein.3 4. So where one sells land bounding it upon the highway, and the same is discontinued by act of law, although the same reverts to the owner of the fee of the soil, the grantor as such, in such a case, would have no right to deprive his grantee of the right to use the discontinued road for the purposes of a way. [ED. So, selling land and bounding it on an alley-way which lies on grantor's own land, conveys a right of way over the alley.5 But where one sold a lot bounding it by a street laid out on a plan, which street was never laid out and accepted by the town authorities, it was held not to give the grantee a right to call upon the grantor to open the street. In a later case, the court said it is 1 O'Linda v. Lothrop, 21 Pick. 292; Tufts v. Charlestown, 4 Gray, 537; Parker v. Smith, 17 Mass. 413; Howe v. Alger, 4 Allen, 206; Brainard v. B. & N. Y. Cent. R. R., 12 Gray, 407; Sutherland v. Jackson, 32 Me. 83. 2 Parker v. Smith, 17 Mass. 413; Parker v. Framingham, 8 Met. 260. 8 Smith v. Lock, 18 Mich. 56. See also Espley v. Wilkes, L. R. 7 Exch. 298, 303; Roberts v. Karr, 1 Taunt. 495; Harding v. Wilson, 2 B. & C. 96. Parker v. Framingham, 8 Met. 260. 5 [Cox v. James, 45 N. Y. 562.] [Fonda v. Borst, 2 Ab. N. Y. Pr. 155.] established that without making a dedication to the public, a grantor may, by selling lots and describing them as bounded on a street running through his land, create an easement in the land, in favor of the grantees, and although the fee remains in him, it is encumbered with the easement;1 and in Maine it is said that selling lands and bounding by a street, gives the grantee a right to have it kept open for his benefit as a street.2 It makes no difference whether the way given as a boundary is called way, street, avenue, lane, road, place, court, square, or any other name describing a public way.3 By bounding on a street as laid out on a plan, the grantor not only grants a right of way over that part of the street which adjoins the granted land but to every outlet and terminus necessary to the practical use of the way. But if on such plan an open space is left in the angle formed by the joining of two streets, suitable either for building lots or for a public square, the mere fact that the space is left open, does not of itself constitute a warranty that it shall be kept open as a public square, nor give to the adjoining landowners, or purchasers under the original owner, any easement over the same.5] 5. In order to a partition of a common estate, a plan was prepared of the premises, and of the several parcels into which it was to be divided, and in the deeds of partition reference was made to the plan. Upon this plan a street or road was laid down, upon which one of the lots was bounded, and to which there was no other mode of access from a public highway, except over the lands of third persons. It was held that the right of way as thus laid down became appurtenant to the lot thus bounded, and passed with it as a proper appurtenance. 1 [Re Eleventh Avenue, 81 N. Y. 436. Cf. Story v. N. Y. Elevated R. R. Co., 90 N. Y. 622.] 2 [Warren v. Blake, 54 Me. 281.] [Franklin Ins. Co. v. Cousens, 127 Mass. 258; Gaw v. Hughes, 111 Mass. 296. The way intended may, if doubtful, be identified by parol evidence. O'Brien v. Schayer, 124 Mass. 211.] * [Fox v. Union Sugar Refinery, 109 Mass. 292; Boston Water Power Co. v. Boston, 127 Mass. 374.] 5 [Boston Water Power Co. v. Boston, sup. ; Williams v. Boston Water Power Co., 134 Mass. 406.] Smyles v. Hastings, 22 N. Y. 217, 224; s. c. 24 Barb. 44. See Van Meter v. Hankinson, 6 Whart. 307. |