Dee v. King

• Decision Date: 19 November 1901
• Citation: 73 Vt. 375,50 A. 1109
• Parties: DEE v. KING.
• Court: Vermont Supreme Court

50 A. 1109

73 Vt. 375

DEE

v. KING.

Supreme Court of Vermont. Franklin.

Nov. 19, 1901.

Appeal in chancery, Franklin county; Stafford, Chancellor.

Suit by George B. Dee against Francis King to enjoin defendant from interfering with complainant's use of a claimed right of way over defendant's land. From a decree dismissing the bill, orator appeals. Reversed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and WATSON, JJ.

H. P. Dee and Partington & Post, for appellant.

G. W. Burleson and Alfred A. Hall for appellee.

MUNSON, J. The orator's buildings are at the southwest corner of his farm, which is at the intersection of roads leading to Milton and Fairfax respectively. The farm extends easterly from the Milton road about one mile, nearly a third of it being beyond the railroad. For some distance from the southwest corner the farm is bounded on the south by the Fairfax road, but beyond this it is separated from the road by land of one Fairbanks, except where the Fairbanks land is intersected by a small piece owned by the defendant, which extends from the highway at the railroad crossing to that part of the orator's farm which adjoins the railroad on the east. Of the defendant's land about one-half acre is on the west side of the railroad, and about three acres on the east side. His house is upon the half-acre piece. These pieces were formerly a part of the Dee farm, and were separated from it by conveyances from Tared Dee, the orator's father, now deceased. The half-acre piece was conveyed in October, 1862, by a deed which contained the following clause: "Reserving the privilege of a pass from the highway past the house to the railroad at my usual place of crossing." The three-acre piece was conveyed March 16, 1867, without reservation or exception. The orator claims that he has a way of necessity across the three-acre piece. A way of necessity can be reserved as well as granted by implication (Willey v. Tbwing, 68 Vt. 128, 34 Atl. 428), and the master's report must be examined to ascertain whether the conditions were such as to afford a basis for this implication. It appears that there is a considerable hill, more or less ledgy, on the orator's lot east of the railroad, running substantially north and south, and in a line about one-third of the distance from the west side of the lot. The orator's sugar trees and wood and timber land are mostly on top of and east of this hill. This part of the lot cannot be reached by way of the orator's land without extreme inconvenience, but can be reached easily over the Fairfax road and the claimed right of way. The hill is such that it cannot be crossed without making several turns, and then only with very light loads. The master finds that the conditions now existing could be materially improved by the building of certain described pieces of road, the expense of which would be disproportioned to the income from the bill lot, but which would benefit the farm as a whole more than enough to offset the cost. The proposed road is pronounced inconvenient, and expensive in the first laying out, but not impracticable.

The orator's claim cannot be sustained upon these findings. From Lord Mansfield down there has been authority for the doctrine...