Maxwell v. McAtee

• Decision Date: 13 December 1848
• Citation: 48 Ky. 20
• Parties: Maxwell v. McAtee.
• Court: Kentucky Court of Appeals

48 Ky. 20

Maxwell v. McAtee.

Court of Appeals of Kentucky.

December 13, 1848

Passways. Right of way. Grants.

APPEAL FROM THE MARION CIRCUIT.

Rountree and Fogle for appellant.

Shuck and Hardin for appellee.

OPINION

MARSHALL CHIEF JUSTICE.

The case stated, pleadings and evidence.

THIS action of trespass quare clausum fregit was brought by Maxwell vs McAtee, for pulling down the plaintiff's gate and adjoining fence. The defendant pleaded the general issue, with leave to give special matter in evidence, and on the trial, attempted to justify the pulling down of the gate and fence, under claim of a private passway, right of way (for five years,) over the plaintiff's land, and entering upon it at the place where the gate stood.

The evidence sufficiently establishes the fact, that there was a parol agreement between the defendant and the plaintiff's vendor, several years before the purchase, that the defendant should have a passway of a few feet in width across the land in question, commencing at the place where the gate stood that at the time the land was inclosed by a fence and a gate at the place where the plaintiff's gate stood, that nothing was said in the agreement about the passway being used with or without a gate, but that during a great portion of the time, after the agreement, there had been a gate in the same place, and the defendant had used and enjoyed the passway in both conditions. There was perhaps no gate standing when the plaintiff purchased, and he erected a new gate, which with the adjoining pannel of fence, the defendant pulled down within the five years. Conceding that the agreement for the passway was in terms equivalent to a grant, and that the parol grant of a passway for five years was valid, still it is evident that the general grant of a passway, or right of way, over the land of the grantor at a particular place, does not confer either the possession or the right of possession of the land, but the mere right of way, or of passing over it. And nothing passes as incident to such a grant, but that which is necessary for its reasonable and proper enjoyment, (3 Kent's Com. 420; ) Lyman vs Arnold, (5 Mason, 195.) Notwithstanding such a grant there remains with the grantor the right of full dominion and use of the land, except so far as a limitation of his right is essential to the fair enjoyment of the right of way which he has granted. It is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him, because they are not granted. And for the...