Kingsley v. Gouldsborough Landimp. Co.

• Decision Date: 26 February 1894
• Citation: 86 Me. 279,29 A. 1074
• Parties: KINGSLEY v. GOULDSBOROUGH LANDIMP. CO.
• Court: Maine Supreme Court

29 A. 1074

86 Me. 279

KINGSLEY

v. GOULDSBOROUGH LANDIMP. CO.

Supreme Judicial Court of Maine.

Feb. 26, 1894.

Report from supreme judicial court, Hancock county.

Action by Charles F. Kingsley against the Gouldsborough Land Improvement Company. Case reported to the supreme judicial court. Judgment for plaintiff.

J. A. Peters, Jr., for plaintiff. Bedford E. Tracy, for defendant.

FOSTER, J. Notwithstanding this is an action of trespass, the real and only question involved is whether the defendant is entitled to a way from necessity over the plaintiff's premises.

The defendant's land embraces what is popularly known as "Grindstone Neck," in the town of Gouldsborough, and is surrounded on three sides by the waters of Frenchman's bay and Winter harbor. On the north, and adjoining the defendant's land, lies the land of the plaintiff, over which the way is claimed.

Admitting that both parcels were originally owned by one William Bingham, through whom, by sundry mesne conveyances, both parties derive their respective titles, we do not think the defendant entitled to the way as one originating from necessity. Such right is founded upon the doctrine of implied grant. And implied grants of this character are looked upon with jealousy, construed with strictness, and are not favored except in cases of strict necessity, and not from mere convenience. The rule is now so well settled in this state that a reference to the decided cases where this question has been fully considered is all that is necessary. Warren v. Blake, 54 Me. 276; Dolliff v. Railroad Co., 68 Me. 173; Stevens v. Orr, 69 Me. 323; Still well v. Foster, 80 Me. 333, 14 Atl. 731; Whitehouse v. Cummings, 83 Me. 91, 98, 21 Atl. 743.

It has long been the established rule that if one grants a close surrounded by his own land, or to which he has no access except over his own land, he impliedly grants a right of way over his adjoining lands as incident to the occupation and enjoyment of the grant. Nichols v. Luce, 24 Pick. 102. And the same rule applies when there has been a severance of the property, one portion of which has been rendered inaccessible except by passing over the other, or by trespassing on the lands of a stranger.

Whether the same rule shall apply in a case like the present, where the property to which the right of way is claimed is partially surrounded by the sea, presents a question somewhat different from any decided case in this state. It has, however, been before the courts in other jurisdictions, and there it was held that the rule did not apply.

Thus, in Lawton v. Rivers, 2 McCord, 445, the court in South Carolina decided that the plaintiff, owner of an island separated by a river from another island, and this island being connected at low tide by a hard marsh with a third island, owned by the defendant, did not have a right of way by necessity from the...