Willey v. Thwing

• Decision Date: 17 March 1896
• Citation: 34 A. 428,68 Vt. 128
• Parties: WILLEY v. THWING et al.
• Court: Vermont Supreme Court

34 A. 428

68 Vt. 128

WILLEY

v. THWING et al.

Supreme Court of Vermont. Washington.

March 17, 1896.

Exceptions from Washington county court; Laforrest H. Thompson, Judge.

This was an action of trespass quare clausum fregit brought by Annette Willey, as administratrix, against Heber and Clinton Thwing. There was judgment for plaintiff, and defendants except. Judgment reversed, and judgment for defendants.

S. C. Shurtleff, for plaintiff.

Frank J. Martin and Geo. W. Wing, for defendants.

TYLER, J. The court below found that in February, 1851, Lewis Taft became the owner of the adjoining lands now owned, respectively, by the plaintiff and defendants. On the 9th of September, 1852, by warranty deed, he conveyed the plaintiffs farm to R. C. Gale, making no express reservation of a right of way across the same. Through successive conveyances, the title to that farm, in November, 1888, passed to Sortwell and Morse, under whom the plaintiff occupies by lease. September 11, 1852, Taft, by warranty deed, conveyed the defendants' land to Dennis Brittain, making no mention in that deed of any right of way. The title to that land, through successive conveyances, passed to the defendants. For a long time prior to the unity of the title to these lands in Taft, there had been a well-defined way across the Gale farm to the other land, which had been used by the owners of the respective lands in going to and from the same. It is found that this is the only feasible route to and from the defendants' land, and that from 1864 to 1883 it was used by the defendants' grantors under a license from the owners of the Gale farm. The law is well settled that the necessity does not in any case create the right of way. The necessity is only a circumstance resorted to for the purpose of showing the intention of the parties, and raising an implication of a grant. The deed of the grantor as much creates the way of necessity as it does the way by grant. One is granted in express words, and the other only by implication. Nichols v. Luce, 24 Pick. 102, and cases cited; Tracy v. Atherton, 35 Vt. 52. Upon the facts reported, had Taft's conveyance of the defendants' land been first in time, there would have been a grant, by implication, of a right of way over the Gale farm, according to the rule that, "upon the severance of a heritage, a grant will be implied of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they had no legal existence as easements." Harwood v. Benton, 32 Vt. 724, citin...