McTavish v. Carroll

Eccleston, J., delivered the opinion of this court. This is an action on the case, brought by C. Carroll, the appellee, against C. C. McTavish, the appellant, for obstructing a road running from the mill of the appellee to his mill-dam, which dam, and the obstructed portion of the road, are on the land of the appellant. The declaration alleges, that the appellee was possessed of an ancient mill, with the right to use the water from a stream on the close of McTavish, through a race running over said dose, from the mill-dam to the mill, and to the use of a road running from the mill to the dam, immediately along the bank of the said race, for the purpose of passing with wagons, &c., as occasion required, to clean out and repair the race; and that the appellant placed a fence along the bank of the race, between the race and the road, whereby the road was obstructed, and the appellee deprived of the use thereof, and prevented and hindered from repairing his race, and his mill was rendered entirely useless. At the instance of the plaintiff, the court instructed the jury, “If they find the deeds offered in evidence by the plaintiff and defendant, and that the plaintiff, on the death of said Charles Carroll, on the 14th of November 1832, came into the full possession of all the property conveyed to him by the deed of the 28th of July 1832, and so continued in possession until this day; and if the jury find that there was a mill on said property, which had been erected thereon some time before the death of said Carroll, and a considerable time or period before the execution of any of the deeds aforesaid, which still remains thereon; and if the jury further believe, from the proof, that there was a race with a road or way upon its western bank or margin, to be used for the reparation of the banks of said race, leading from a dam upon the land of said defendant, which was conveyed to him or them under whom he claims, by said Carroll, who, during his lifetime, and for a long period before his death, used and possessed said race and road, or way, in connection with said mill; and if the jury further find, that from the death of said Carroll, the plaintiff has been in the quiet and peaceable possession of ³⁵⁸ the land conveyed to him, as aforesaid, with the said mill, and also from the time last aforesaid, did use and enjoy the said race and road, or way, through the lands of the defendant, to and with the said mill, until the 26th of March 1852 ; and if the jury should also believe that the defendant, on or about the day last aforesaid, erected a post-and-rail fence on the western bank of said race, over and along said road or way, and extended poles across the same near to said dam, and also at a greater distance therefrom, as stated by the witnesses, and that said defendant did also plough up the bed of said road, and reduce the same, to cultivation, then the plaintiff is entitled to recover.” The correctness of this instruction is denied by the appellant, upon the ground that Charles Carroll of Carrollton, being the owner of the land on which the dam was erected, and the race and road passed over, and also of the land where the mill stood, having conveyed the land on which the dam and race were, with the appurtenances, to Mrs. McTavish, subject to his own life estate, without any other reservation or exception whatever, his subsequent conveyance to the appellee gave him no right to use the dam, race or road, and consequently the obstructions to the road complained of, could not entitle the plaintiff to a verdict. inasmuch as the elder Mr. Carroll owned both parts of the estate whilst he used the mill and its appurtenances, notwithstanding the great length of time he so used the same, it is true he did not thereby acquire or enjoy a right to the dam, race and road, as easements, strictly speaking; for a man cannot subject one part of his property to another by an easement, because he cannot have an easement in his own property, as the same object is obtained by him through the exercise of the general right of property.

Nevertheless, under the ^peculiar circumstances of these transactions)\it seems but reasonable that MrsLMcTavish should be considered as having taken her portion of the estate subject to all such mill-rights as were in use at the date of the conveyance to her^and which continued to be used subsequently, and were actually neces ³⁵⁹ sary to continue the mill in operation. A different view of the subject would necessarily have placed the use of the mill entirely at the will and pleasure of Mrs. McTavish, or those claiming under her, immediately upon the decease of her grandfather. Such, we think, never was the intention of the grantor, or the expectation of the grantee. Nor do we consider ourselves bound to give such a construction to the conveyance.

It was not a sale, but a gift, of one thousand acres of land, part of a large estate containing some six or seven thousand acres. The balance, with the exception of a few acres, was subsequently conveyed to the appellant. And on this portion of the estate the mill-house stood. The mill, therefore, was a kind of property peculiarly valuable to the owner of such an estate.

And yet, without the right to use the dam and race, which have been spoken of, the mill is entirely useless. In the deed to the mother of the appellant, provision is made for securing to her the use of “all the roads, whether private or public,” which were then used in going to or from the premises, “and particularly the road leading therefrom to the mill, the private turnpike, and the road leading by Mike’s quarter.” This provision in regard to the road to the mill, to say the least of it, furnishes no evidence of a design on the part of the grantor to destroy the mill, by that conveyance. But we think the privilege of using the dam, race and road,' may be sustained upon the principle of legal necessity. There are cases where necessity has been held sufficient to secure rights in some degree analogous to those claimed by the appellee.

Where a man owns two closes, A and B, with a road from A over B, to the highway, and sells close B, without reserving, in the deed, any right of way, if he has no other road, he may use the one over B as a way of necessity. There was, at one period, some conflict of authority on this point, but we think it may. now be considered settled as we have stated it. 3 Kent’s Com., marginal page 420. ³⁶⁰ Under the title of “Easements of Necessity,” this subject is fully examined by Gale & Whateley, in their “Law of Ease ments,” from marginal page 71 to 85. See also 20 Law & Eq. Rep., 561 .

Under the title “Acquisition of easements by implied grant,” at marginal page 49, of Law of Easements, it is said : “Upon the severance of an heritage, a grant will be implied, 1st, of all those continuous and apparent easements which have been used by the owner during the unity, though they have had no legal existence as easements; and 2ndly, of all those easements without which enjoyment of the several portions could not be fully had.” The authors of this work enter very fully into the consideration of rights acquired by implied grants, and refer to numerous cases on the subject. At page 56, will be found that of Nicholas vs. Chamberlain, reported in Oro. Jac., 121. There, “It was held by all the court, upon demurrer, that if one erects a house' and builds a conduit thereto in another part of his land, and conveys water, by pipes, to the house, and afterwards sells the house, with the appurtenances, excepting the land, or sells the land to another, reserving to himself the house, the conduit and pipes pass with the house because it is necessary and quasi appendant thereunto: and he shall have liberty, by law, to dig in the land for amending the pipes, or making them new, as the case’ requires.” If, in such a case, upon the ground of necessity, the law would permit the owner of the house to retain his' right to the conduit, notwithstanding he sold the land through which it passed, and would also continue or give' a right of way, to a man, over land which he had conveyed without any express reservation of such a right, it would seem to be a very just conclusion', that under the circumstances of this' case, the appellee is entitled to the use of the dam, race and road, in' the manner they were used by the elder Mr. Carroll.

In opposition to the claim- of the appellee, reference has been made to the case of Spencer vs. Spencer, 2 Iredell's Law Rep., 95. There the defendant claimed the right to flow the water falling upon his land down into and through a ditch ³⁶¹ situated on the land of the plaintiff. Both tracts were originally owned by Edward Spencer, who conveyed them to his two sons, Jones and Tucker. The plaintiff claimed under the former, and the defendant under the latter.

The deed to Jones bore date the 12th of May 1797, and the other the day after. The first, after describing the land, contained these words, “a privilege of two leading ditches to Tucker Spencer excepted.” Nothing was said in regard to the ditches in the second deed. Judgment was given in favor of the plaintiff, and denying the right of the defendant to use the ditches. In giving the opinion of the court, Ch.

J. Ruffin considered the defendant’s claim as resting upon the exception contained in the first deed,' and said : “Without stopping to consider whether the provision quoted can be regarded as a condition merely, it may be admitted, most strongly against the plaintiff, that the words amount to a grant to Tucker Spencer, the defendant’s father.' Still there is nothing to annex the grant to the upper tract of land, and transmit it, with the land, to an assignee. Indeed, the deed to Tucker Spencer was not made until the day after, as is to be inferred, prima Jade, from the dates of the deeds.The grant was, therefore, personal to Tucker Spencer, and the right to the easement expired, at all events, with his life,' and did not come to his son and heir, the defendant.” It is evident the decision in that case rested, exclusively, upon the proper construction of the particular exception referred to. Ami such an exception being in the deed, the court? may have considered it as precluding any further or more extensive right, by implied reservation or exception, because expressio unius est exclusio alterius. Moreover, it seems the case came before the court upon am agreed statement of facts; in which statement, so far as can be ascertained from the ieport, there was nothing to show’, unless it be by inference only, that it was not merely convenient, but actually necessary, for the land owned by the defendant to be drained through those ditches.

And, as in this State, on a case stated, the court can make no inference of fact, we must suppose the ³⁶² same rule to exist in North Carolina, in the absence of any thing to show the contrary. If so, there was no such necessity before the court as would authorize them to have held, that the defendant was entitled, under an implied reservation, or exception, or grant, to use the ditches, even assuming such an implication was not precluded by virtue of the express ex-' eeption contained in the deed. Burr vs. Mills, 21 Wend., 290 , is a case much relied on in Behalf of the appellant. Prior to the date of the deed under which the plaintiff claimed, a dam had been erected, and was standing when the deed was executed; which dam caused the water to flood part of an acre of the land included within the , lines of the conveyance to the party under whom the plaintiff claimed.

To recover damages for thus causing the land to be flooded, the suit was instituted, and the plaintiff obtained a judgment. The controversy also involved alleged injuries to other property, but the questions decided in reference to them, have no material bearing upon the case before us. Because the land in dispute was included within the lines-of the deed, the court held, that notwithstanding the existence' of the dam at the date