Herman v. Roberts

• Decision Date: 14 January 1890
• Citation: 23 N.E. 442,119 N.Y. 37
• Parties: HERMAN v. ROBERTS.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 37

23 N.E. 442

HERMAN

v.ROBERTS.¹

Court of Appeals of New York.

Jan. 14, 1890.

Appeal from general term, second department.

Bill for injunction, brought by Catherine S. Herman, executrix, against Charles H. Roberts, to restrain defendant from using plaintiff's right of way over defendant's land so as to injure and impair the same. There was judgment for plaintiff, and defendant appealed.

FINCH, J., dissenting.

Frank B. Lown, for appellant.

J. N. Fiero, for respondent.

RUGER, C. J.

The evidence in the case was quite conflicting, and the principal dispute on the trial was whether the defendant had so used the plaintiff's right of way as to injure and impair it, and require the making of repairs thereon to restore its usefulness. The trial court found, as matter of fact, ‘that the defendant has used said road-way for carrying produce and farming utensils upon and along the same, to the injury and annoyance of plaintiff, and threatened to use the same whenever he deems necessary for such purposes, and to use all force necessary for him to pass oversuch road-way in such manner.’ The evidence fully supported this finding, and tended to show that the defendant had cut up and injured the road-bed by drawing heavy loads over it, and placing stones thereon which obstructed the passage. Under established rules, this court is concluded by this finding, and must assume that the defendant had used the road-way in such manner as to injure it, and threatended a continuance of such use. This fact clearly entitled the plaintiff to a remedy by injunction to restrain its improper use. The plaintiff obtained this right of way by purchase and grant from the defendant, and it consisted of a piece of land, ‘as now staked out,’ across defendant's farm, running from the plaintiff's land to the public highway, a distance of about 900 feet, and was plainly intended to facilitate the plaintiff's access to the public road from his residence. This residence was built and used as a gentleman's country seat, and had no other connection with this public road than the way thus purchased. The land through which the road was constructed was rocky and uneven, and was not adapted to purposes of cultivation, or for a carriage road, until it had been prepared for that purpose by the plaintiff, which was done at considerable labor and expense. No reservation of a right to use such road by the defendant was incorporated in the deed, and his right to such use depends altogether upon the extent of his interest as the owner of the soil of the servient estate. No substantial difference exists between the parties as to the rules of law governing the rights of the respective parties in the premises, and the controversy seems to be reduced to the question whether the use proved was materially injurious to the road. Both parties have referred, for the law governing the case, to the rule laid down by Washburn in his work on Easements, (*188,) stating that ‘all which the person having the easement can lawfully claim is the use of the surface for passing and repassing, with a right to enter upon and prepare it for that use,’ and that the owner of the soil of a way, whether public or private, may make any and all uses to which the land can be applied, and all profits which can be derived from it, consistently with the enjoyment of the easement. The conveyance of the right of way unquestionably gave the grantee, not only a right to an unobstructed passage at all times over the defendant's land, but also all such rights as were incident or necessary to the enjoyment of such right of passage. Bliss v. Greeley, 45 N. Y. 671;Maxwell v. McAtee, 9 B. Mon. 21. The grantee thus acquired the right to enter upon the land, and construct such a road-bed as he desired, and to keep the same in repair. He could break up the soil, level irregularities, fill up depressions, blast rocks, and not only remove impediments, but supply deficiencies, in order to constitute a good road. He had a right to exclude strangers from its use and to restrict such use of it by the owner of the servient tenement as was inconsistent with the enjoyment of his easement. The owner of the soil was under no obligation to repair the road, as that duty belongs to the party for whose benefit it is constructed. 2 Washb. Real Prop. 311; 2 Hil. Real Prop. 101. In considering the extent of the rights of the respective parties in the grant of a right of way, it is not proper to refer to the parol negotiations which preceded its execution, or the colloquium accompanying it, (Bayard v. Malcolm, 1 Johns. 467;Renard v. Sampson, 12 N. Y. 561;Long v. Railroad Co., 50 N. Y. 76;) but we are to regard the language of the grant, and, when that is uncertain or ambiguous, the circumstances surrounding it, and the situation of the parties, with a view of arriving at the true intent of the parties. As was said in Bakeman v. Talbot, 31 N. Y. 370: ‘The doctrine that the facilities for passage, where a private right of way exists, are to be regulated by the nature of the case, and the circumstances of the time and place, is very well settled by authority.’ In Burnham v. Nevins, 144 Mass. 92, 10 N. E. Rep. 494, MORTON, C. J., says: ‘These general principles are that a man who owns land subject to an easement has the right to use his land in any way which is not inconsistent with the easement, * * * and that the extent of the easement claimed must be determined by the true construction of the grant or reservation by which it is created, aided by any circumstances surrounding the estate and the parties which have any legitimate tendency to show the intentions of the parties.’ See, also, Onthank v. Railroad Co., 71 N. Y. 194. Under these rules, it is obvious that the...