Harvey v. Crane

• Decision Date: 17 April 1891
• Citation: 48 N.W. 582,85 Mich. 316
• Court: Michigan Supreme Court
• Parties: HARVEY v. CRANE.

48 N.W. 582

85 Mich. 316

HARVEY v. CRANE.

Supreme Court of Michigan

April 17, 1891

Error to circuit court, Washtenaw county; E. D. KINNE, Judge.

F Hinckley, for appellant.

J. Willard Babbitt, for appellee.

MCGRATH J.

This is trespass for tearing down a fence on the line of a private road. The cause was tried by the court, and comes here upon findings of fact and conclusions of law. Defendant owned a parcel of land lying between plaintiff's land and the public highway. Plaintiff in August, 1887, applied to the highway commissioner, under the statute, to lay out a private road 24 feet wide, at one side of defendant's premises extending from the public highway to plaintiff's land upon which application the necessary proceedings were had and the road was laid out and opened, taking less than one-third of an acre of land, for which the jury awarded, and plaintiff paid, $75. The defendant did not signify his intention of making use of said private road, pursuant to section 1393, How. St. Since the opening of said highway in August, 1887, the plaintiff has been accustomed to use her said land as pasturage; that during the seasons of pasture the plaintiff has daily driven her stock, cattle and horses, over and along said private road; that the lot of the defendant lying adjacent to this private road on the south side thereof embraces some nine acres of land, and is arable soil, used by the defendant for crops and pasturage; that, shortly after the opening of said private way, the defendant said to the plaintiff that he did not know as he, the defendant, wished for any fence on the south side of said right of way; that at some later period the defendant instructed the plaintiff that she must lead her stock when they passed along this way; that thereafter, in the summer of 1888, the plaintiff erected a post and wire fence along the south side of said way, and about one foot within the limits of the same; that said fence was sufficient to turn the said stock of cattle and horses and keep them within the way while passing through the same; that in the month of May, 1889, the defendant entered upon said way, and tore down and removed the said fence as aforesaid erected by the plaintiff, and this action is brought to recover for the alleged trespass; that the damage to said fence was two dollars; that the defendant did not consent or object to the building of the fence by the plaintiff along the said right of way; that the wires composing the said fence so built by the said plaintiff along the said way were to some extent, at one or two points, down, and on the defendant's land; that there was no evidence that defendant Crane interfered with plaintiff's use of the right of said road. The court found, as a conclusion of law from the above and foregoing facts that the plaintiff had the right of way or private passage over the land of the defendant; that, as an incident thereto, she had the right to whatever may be necessary for the reasonable and proper enjoyment thereof; that it is unreasonable, while the defendant crops or pastures his land adjacent to said right of way, to forbid or prevent the plaintiff from employing the usual and reasonable methods of protecting herself from the hazards and danger attending the driving of stock along said way, with the fields of the defendant inviting and uninclosed; that to withhold such right of protection from the plaintiff, and at the same time to hold her responsible for all damage which her stock may unavoidably do to the property of the defendant, is practically to destroy the value of the right which the plaintiff has purchased, or, if there be no liability except for want of due care, yet with the growing grain lying adjacent thereto, unfenced, it would be impossible to enjoy to any reasonable extent this right of way. The right, therefore, of the plaintiff to erect and maintain a suitable fence adapted to the object sought, and within the right of way, must be deemed an incident necessary to the reasonable enjoyment of the easement obtained; and the court finds, as a conclusion of law, that the plaintiff is entitled to recover in this action, and assesses the damages of the plaintiff at the sum of two dollars, with costs of suit to be taxed.

The defendant insists that he is still the owner of the soil over which the easement exists; that as such he is entitled to the herbage growing thereon, and to use the land for raising crops, or for pasturage, subject only to plaintiff's right of way over it; and the defendant cannot be excluded from it by the construction of a fence on the line of the way. "Action in one form or another," says counsel for defendant, "by the owner of the dominant estate, to restrain the owner of the servient estate from destroying his right of way, by placing gates and fences across it depositing substances in it, building buildings upon it, cutting it up, and rendering it impassable by drawing heavy loads over it, and the like, are common in books. But this and the case of Brill v. Brill, 108 N.Y. 511, 15 N.E. 538, are the only cases we have found where the owner of the right of way attempted by suit to increase the burden upon the fee." While it is true, is it not because the right to an inclosed way is generally conceded? It cannot be denied that as a rule public highways, private rights of way, and ways or lanes maintained upon agricultural lands for the convenience of private owners, are in fact inclosed. This is not a case where the owner of the dominant estate seeks to compel the owner of the servient estate to maintain a fence, for here the owner of the dominant estate seeks only to establish her right to inclose the way to protect herself in its enjoyment. It is well known that private roads are invariably inclosed, and no case can be found in the books where the right to inclose a statutory private road has been assailed. In several of the adjudicated cases the existence of boundary line fences appears. Whether inclosed by the owner of the fee or the owner of the way we are not advised, but the fact of inclosure remains. When a right of way exists by virtue of a license or grant, the incidents of that right are determined by reference to such grant or license, and, when that is uncertain or ambiguous, the circumstances surrounding the grant or license and the situation of the parties must be inquired into with a view of arriving at the intention of the parties. When acquired by prescription, it is largely a question of the nature of the prior use. The right here insisted upon is not one acquired by grant, license, or prescription. It is one acquired and paid for under the statute. It is not simply a right of way over defendant's land, nor a right of ingress or egress merely. It is a statutory...