Oliver v. Hook

• Decision Date: 13 December 1877
• Citation: 47 Md. 301
• Parties: JOSEPH OLIVER v. AUGUST HOOK.
• Court: Maryland Court of Appeals

47 Md. 301

JOSEPH OLIVER v. AUGUST HOOK.

Court of Appeals of Maryland

December 13, 1877

EASEMENTS.

APPEAL from the Circuit Court for Baltimore County.

The case is sufficiently stated in the opinion of the Court.

In this case there were several prayers offered on each side, all of which were rejected, and the Court instructed the jury that there was no evidence in the case to entitle the plaintiff to recover, and that their verdict must be for the defendant.

The plaintiff excepted to the rejection of his prayers and to the aforesaid instruction given by the Court to the jury, and took this appeal.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, BRENT MILLER and ALVEY, J.

Wm. M. Merrick and R. R. Boarman, for appellant.

R J. Gittings and D. J. McIntosh, for appellee.

A right of way over another's ground, of necessity, can arise only by grant, express or implied. If the latter, the implication is conclusive only when the way is indispensably essential to the beneficial enjoyment of the estate.

Mere convenience is not sufficient to raise it. 3 Taunton, 31; Nichols vs. Luce, 24 Pick., 102, 104; Brice vs Randall, 7 G. & J., 349; Seabrook vs. King, 1 N. & McC., 140; Pennington vs. Galland, 20 Eng L. & Eq., 561.

"It has been held in Trash vs. Patterson, 29 Me., 499, that where land was conveyed, bounded on one side by the land of the grantor, and on the other sides by lands of other persons, that no right of way from necessity passed as incident to the grant." And necessity alone, without reference to the respective owners, is not sufficient to create this right.

It is not true, said Lord ELLENBOROUGH, that whenever a man has not another way he has a right to go over his neighbor's close. Bullard vs. Harrison, 4 M. & S., 392.

The right grows out of the transactions between the owners of the respective closes in the alienation of the land, the way being regarded by the law as tacitly granted or reserved, as the case may be, whenever from the nature of the case at the time of the conveyance, such a necessity as is above mentioned was created. The way in such case is incident to the grant. Ponfret vs. Ricroft, 1 Saunders, 323; Woolrych on Ways, 20, 21.

The object of the law in attaching such an incident to the grant, and raising an implied right of way to the grantee, is to enable the grantee to pass either from one part of his own ground to another part, or to pass from his own ground to some public highway. But "a person cannot claim a way over another's ground from one part thereof to another." Greenleaf's Cruise, title XXIV, sec. 6; 6 Mod. R., 3.

If the way claimed by plaintiff over defendant's land was neither from one part of his own ground to another part, nor from his ground to a public highway, the rule ratione cessante, lex ipsa cessat, applies. If the grantor, Jessop, had no lawful access to his lands, how could he grant what he did not possess?

The access by Jessop to his own lands was a mere privilege or license personal to himself. The land itself enjoyed no benefit derived from the servitude of other adjacent parcels.

Such a right of way, therefore, as incident to the grant is only implied when the grantor's land binds on some highway which affords to the grantee the opportunity as well as the right to exercise the benefit which would be derived from passing over the grantor's land.

2. But if "a person cannot claim a way over another's ground, from one point thereof to another," the first count of plaintiff's narr. will sustain no recovery, because the claim is for a "way from the plaintiff's land over the land of defendant to a private road leading," &c., and the proof is that the private road is wholly on the defendant's land. The second count of the narr. for a way "over the land of defendant and then through a private road," &c., is equally incapable of sustaining the action, it endeavors to combine a way arising by necessity, with a way which could only be acquired by prescription or express grant, and there is no proof of either.

3. But again, a right of way can only be used according to the grant, and must not exceed it. Therefore, if a person has a right of way over another's close to a particular place, he cannot justify going beyond that place. Greenleaf's Cruise, title XXIV, sec. 14; Woolrych on Ways, 34; McTavish vs. Carroll, 7 Md., 352; McTavish vs. Carroll, 17 Md., 1.

Granting for argument sake that the plaintiff had a right of way over defendant's land from the bars in Minnick's enclosure to a point at which was the private road or Feast's lane, near the black-heart cherry tree--what would it avail him, on arriving at that point? how could he pursue his course?

The claim being for a private way, it is necessary to show the termini, it must lead to a public highway, or if it leads to a private road or close, it is necessary for the plaintiff to show some interest in it. 2 Chitty's Pleading, 808, (note e, and cases there cited;) Rouse vs. Bardin, 1 H. Blackstone, 355, opinion of WILSON, J.

The old route by Feast lane, is closed, not by defendant but by Presstman, the adjoining owner. To surmount the difficulty the plaintiff in his amendment claims to proceed "through a private road leading," &c.

This private road cannot be connected with any implied grant of necessity at the time of Minnick's purchase. The road was not then in existence, it has been made by defendant upon new soil, and is independent of the road formerly existing, called Feast's lane.

4. The right of way of necessity, though founded in grant, may be extinguished by facts arising subsequent to the grant. Holmes vs. Goring, 2 Bingham, 76; McDonald vs. Lindale, 3 Rawle, 492; Collins vs. Prentice, 15 Conn., 39; Pierce vs. Selleck, 18 Conn., 321; Smith vs. Higbe, 12 Vermont, 113; New York Life Ins. Co. vs. Milner, 1 Barbour Ch., 353.

One who has a way of necessity, the precise course of which is not defined, may pass over any part of the land in the course least prejudicial to the owner and reasonably convenient to himself. Holmes vs. Suly, 19 Wendell, 507; Russell vs. Jackson, 2 Pick., 574; Capers vs. Wilson, 3 McCord, 170.

If, when Jessop sold to Minnick, a way of necessity was reserved over the remaining lands, when Feast succeeded to the ownership he stood precisely in Jessop's position, being bound to furnish a way somewhere. By selling to defendant without reservation, he imposed the easement upon the remaining lands and exempted that of defendant, which he had a right to do, the remaining lands furnishing a way reasonably convenient. That the remaining lands of Feast furnished a way reasonably convenient, is proved by the report and action of persons appointed by the County Commissioners of Baltimore County to lay out a road for plaintiff, which they proceeded to do on the dividing line between defendant and Presstman.

ALVEY J., delivered the opinion of the Court.

The appellant brought his action in the Court below to recover for the alleged obstruction of what he claims to be his private right of way over the land of the appellee.

There is no question arising on the pleadings that we are required to decide. The questions presented here arise solely on the prayers offered by the appellant, which were rejected, and the instruction of the Court that there was no evidence before the jury upon which they could find a verdict for the plaintiff.

It appears that, in 1847, Charles N. Jessop, being owner of a tract of land, of about 220 acres, conveyed to one John Minnick 15 1/4 acres, part of such tract; and that the part so conveyed was surrounded by other portions of the land of the grantor, and the lands of one Joshua F. Cockey. The appellant claims under Minnick, and now owns and occupies the land that was conveyed to the latter by Jessop in 1847.

In 1850, Charles N. Jessop sold the residue of the tract of 220 acres to William Jessop, and the latter sold the same soon after to Feast, and, in 1865, Feast sold off a portion to the defendant Hook, and subsequently sold the residue to Presstman.

It also appears, and is indeed conceded, that no part of the land of Charles N. Jessop, nor of that sold to Minnick, bounded upon any public road or highway; but access to the public highway from said land was had by going over private ways through the land of a neighbor. The way claimed by the appellant, as described in his declaration, is a way from the land embraced in the deed to Minnick, "over the land of the defendant, and then through a private road, leading out to the present highway leading from Warren Factory to the York road."

It is contended by the appellant, and at the trial below he offered proof tending to show, that, at the date of the deed to Minnick, the only lawful access to the land conveyed was over the contiguous lands of the grantor, "and that at the time of said deed, the grantee Minnick, who had previously been a tenant to Jessop, the grantor, used a way across the contiguous lands of his grantor, which was opened into the grantee's land through a pair of bars, and thence passed across the land of the grantor, with a certain private lane or road, to a certain point, and thence across the lands of Joshua F. Cockey, to the public road, which leads from the York turnpike to the Warren Factory." The appellant also offered evidence tending to show, that at the date of the deed to Minnick this way was distinctly marked by tracks of men and vehicles, and that it continued to be used for the purpose of ingress and egress to and from the land now owned by the appellant, until 1850, when Charles N. Jessop sold the residue of the tract to William Jessop; and also that the appellee, after his purchase in 1865, for his own convenience, changed, in part, the existing...