Ritchey v. Welsh

• Citation: 48 N.E. 1031,149 Ind. 214
• Parties: RITCHEY et al. v. WELSH.
• Decision Date: 04 January 1898
• Court: Supreme Court of Indiana

149 Ind. 214

48 N.E. 1031

RITCHEY et al.

v.WELSH.

Supreme Court of Indiana.

Jan. 4, 1898.

Appeal from circuit court, Jasper county; U. Z. Wiley, Special Judge.

Action by Mary E. Welsh against Osiander K. Ritchey and others to enforce a way of necessity. From a judgment for plaintiff, defendants appeal. Affirmed.

Seller & Uhl and R. W. Marshall, for appellants. Frank Foltz, Chas. G. Spitlert, and Harry R. Kurrie, for appellee.

MONKS, J.

This action was brought by appellee against the appellants to enforce a way of necessity. The demurrer to the complaint was overruled. The court made a special finding of facts, and stated its conclusions thereon in favor of appellee, to each of which appellants excepted. Final judgment was rendered in favor of appellee. The errors assigned, and not waived, call in question each conclusion of law and the action of the court in overruling the demurrer to the complaint. It appears from the special finding that Mary C. Ritchey died intestate, the owner of a body of land bounded on the west and south by a highway; that afterwards, in 1887, partition was made of said real estate, so that the real estate allotted to each was bounded on the west or south by said highway. The 18 acres set off to appellant Osiander K. Ritchey was 36 rods wide north and south, and divided the 53 acres set off to Samuel W. Ritchey, husband of said deceased, from the 29 acres set off to appellee. Afterwards said Samuel W. Ritchey died the owner of said 53 acres, and in 1891, in an action for partition, the same was divided in such a manner that the part set off to appellant Osiander K. Ritchey was between the public highway and the part set off to appellee, so that the tract set off to appellee could not be reached from a public highway over said 53 acres, except by crossing over the part thereof set off to said Osiander K. Ritchey. No mention was made in said partition proceedings of a way from appellee's tract to any highway. Samuel W. Ritchey occupied said 53 acres from the time the same was set off to him until his death, and entered from the highway through a gate on the part of said land afterwards set off to said appellant Osiander K. Ritchey, going over the land in the most convenient route. After the partition of the 53 acres, a gate was still maintained upon said land at the highway for the convenience of appellee, she going thence north to a point west of the southwest corner of her said tract; thence east to her land. The part of the 53 acres set off to appellee was not fenced until 1893, when she erected a gate at the southwest corner thereof, and has since used said gate, and a route extending directly west therefrom to the east line of the southwest quarter, and thence south to the gate at the highway, the entire way so used being upon the part of said 53 acres set off to appellant Osiander K. Ritchey, and with his consent. Appellant Osiander K. Ritchey, before the commencement of this action, offered to appellee the privilege of passing over the 18 acres which were set off to him in the partition of his mother's land, in 1887, from north to south. By the way so offered, appellee could go from the 25 acres set off to her in the partition of her father's land, in 1891, to the 29 acres set off to her in the partition of her mother's land, in 1887, which last-named tract was bounded on the west by a highway. Appellants insist that the court erred in overruling the demurrer to the complaint, and in each of the conclusions of law, because-“First, a right of way of necessity does not arise out of partition proceedings; second, appellee had another way offered before this action was commenced; third, appellants had selected another way.”

It is settled law that if one conveys a part of his land in such form as to deprive himself of access to the remainder, unless he goes across the land sold, he has a way of necessity over the portion conveyed. This is because the law presumes an understanding of the parties that the one selling a portion of his land shall have a legal right of access over the part sold to the remainder, if he cannot reach it in any other way. If the part conveyed is in such form that the grantee cannot reach the same except over the part not conveyed, such grantee has a way of necessity thereto over the land of the grantor, not conveyed, for the reason that the law presumes that one would not sell his land to another without an understanding that the grantee should have a legal right of access thereto over the part not conveyed. Collins v. Prentice, 15 Conn. 39, and cases cited; Stewart v. Hartman, 46 Ind. 331, 341, 342;Logan v. Stogsdale, 123 Ind. 372, 376, 377, 24 N. E. 135;Ellis v. Bassett, 128 Ind. 118, 27 N. E. 344, and cases cited; Kimball v. Railroad, 27 N. H. 448;Nichols v. Luce, 24 Pick. 102;Pernam v. Wead, 2 Mass. 203; Pennington v. Galland, 9 Exch. 1; White v. Bass, 7 Hurl. & N. 732; Washb. Easem. *pp. 164, 166. These presumptions prevail over the ordinary covenants of a warranty deed. Brigham v. Smith, 4 Gray, 297. The rights of the grantor and grantee would not be different or any more extensive if by the terms of the deed express provision was made for such way of necessity (Viall v. Carpenter, 14 Gray, 126;Blum v. Weston, 102 Cal. 362, 36 Pac. 778; Brigham v. Smith, supra); the law thus giving effect to such grant according to the presumed intent of the parties. Appellants contend that this right of a way of necessity can only exist when there is a grant by one owning both the dominant and servient estate. This right, however, has not only been raised between parties to the conveyance of one or more parts of land, when the part granted or retained can only be reached over the other part, but also where a part of a tract of land has been sold or set off on execution or by an executor or administrator. Ellis v. Bassett, supra; Pernam v. Wead, supra; Taylor v. Townsend, 8 Mass. 411;Russell v. Jackson, 2 Pick. 573;Schmidt v. Quinn, 136 Mass. 575;Smyles v. Hastings, 22 N. Y. 217; Howton v. Frearson, 8 Term R. 50. It has been held that such a right exists in partition proceedings in favor of any tract allotted which is not accessible except over the part or parts of the tract allotted to others. Viall v. Carpenter, supra; Blum v. Weston, supra. See, also, Godd. Easem. (Bennett's Ed.) 348. Under the authorities, it is clear that if the parts of said real estate allotted to appellant Osiander K. Ritchey and appellee, respectively, had been conveyed or devised to them by Samuel W. Ritchey, their common ancestor, a way of necessity would have been created in favor of the part conveyed or devised to appellee. The reason for the doctrine of a way of necessity is thus stated in Collins v. Prentice, supra: “And although it is called a way of necessity, yet, in strictness, the necessity does not create the way, but merely furnishes evidence as to the real intentions of the parties; for the law will not presume that it was the intention of the parties that one should convey land to the other in such a manner that the grantee could derive no benefit from the conveyance, nor that he should so convey a portion as to deprive himselfof the enjoyment of the remainder.” The reasons given to support a way of necessity, in case of a grant, support such a rule with equal force, when there is partition of land by deed or by a proceeding in court. In Viall v....