Standiford v. Standifopd

• Decision Date: 10 July 1873
• Citation: 6 W.Va. 364
• Parties: Standiford v. Goudy. James Standifopd, Plaintiff and Appellant, against John Goudy, Defendant and Appellee.
• Court: West Virginia Supreme Court

6 W.Va. 364

Standiford

v.Goudy.

James Standifopd, Plaintiff and Appellant,

against John Goudy, Defendant and Appellee.

Supreme Court of Appeals of West Virginia.

Decided July 10th, 1873.

Syllabus.

a declaration in case in the form given by Chitty, alleging generally the Plaintiff's possession of a messuage and incident right to a way over another close, and the obstruction by the defendant of the latter right, is good.

But a declaration purporting to set forth facts that constitute such a right, and so indicating that no others material exist, if it does not show facts sufficient, though it super-adds a general statement that otherwise might be adequate, is nevertheless bad.

When the owner of two tracts of land has used a way to and from one over the other, no matter how long, and he grants the former tract, without mention of any way, unless the way be necessary to the enjoyment of the tract granted, the mere grant of the land does not create or confer a way appendant, appurtenant or in gross.

The Statutory provision that a deed, unless an exception be contained in it, shall be constructed to include appurtenances, does not apply to the creation of easements, but to;the°transfer of those already existing.

"When a declaration contains two counts, one of which is good and the other had, and there is a demurrer to the whole, hut not to each, count, the demurrer should he overruled.

The case is stated in the opinion of the Court. Ewing for Plaintiff. Cresnell for Defendant. Hoffman, Judge.

This is an action of trespass on the case, the declaration in which contains two counts.

The first count alleges that before and at the time of the committing of the grievance therein mentioned, the Plaintiff was, and thence hitherto has been, and still is lawfully passed of a messuage with the appurtenances: and. by reason thereof, the Plaintiff, during that time, ought to have had and still of right ought to have, a certain way from the messuage, through and over a certain close, to a public highway, described, and so, back from the same, at a point mentioned, through and over the close, to the messuage, for himself, his servants and tenants to pass and repass, on foot and with wagons, horses, cattle and other live stock, at all times of the year, at his or their free will and pleasure: Yet the Defendant, while the Plaintiff was so possessed of the messuage and so entitled to the way, wrongfully and injuriously stopped up and obstructed the way; and the Plaintiff could not, during the time mentioned, and can not have and enjoy his way, as he, of right, ought to have done, and otherwise might and would have done, and is deprived of the use and advantage thereof.

According to the practice, well recognized, whether we approve it or not, declarations in actions of trespass and case for the recovery of damages to real estate, generally state the right of property in the least definite manner conceivable, and merely mention the land, without any description that serves any practical purpose of distinguishing it from any other tract of the same character. Even .366]

the declaration in ejectment, when the suit was prosecuted to recover the property itself, before the late legislation on the subject, was not more specific.

Neither the owner of the soil over which another has a way, nor a stranger, has a right to obstruct it. The count for such obstruction, then, need not state who owns the soil.

This count is in the form prescribed by Mr. Chitty and approved by Mr....