Oliver v. Hook

Alvey, J., delivered the opinion of the Court. The appellant brought his action in the Court helow to recover for the alleged obstruction of what he claims to he 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 hy 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 15J 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 hy 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 con ³⁰⁷ veyed 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 way, where it passed over his lands; and then gave evidence to show “that there never was any other lawful road or way to said premises than the one in question, and that said way to and from said premises had been used from the time of the purchase by Min-nick by all the successive owners and occupants thereof, until he was obstructed and prevented from using said way over the land of the defendant.” Upon this state of the case, as presented by the appellant, his counsel contend that, inasmuch as the way was in existence and apparent at the time of the making of the deed to Minnick, it passed as incident and appurtenant to the land conveyed, by force and operation of the terms employed in the deed. But we are not of that opinion. • The deed is for a specific piece of land, being parcel of a larger piece held and owned by the grao tor, and described by metes and bounds. In such case, in the absence of apt and express terms, no specific way outside the limits of ³⁰⁸ the land granted, if not properly an existing easement, will pass as appurtenant. The only words in the deed to Minnick that could possibly be relied on to convey the right of way in question are, “ all and every the rights, privileges, appurtenances, and advantages to the same belonging, or in any wise appertaining.” If there was a way belonging to the estate, as a pre-existing easement, such way would pass by force of these terms, or even without the use of them; but such terms used in a conveyance of part of a tract of land, as in this case, will not create a new easement, nor give a right to use a way which had been used with one part of the land over another part, while both parts belonged to the same owner, and constituted an entire estate.

A party cannot have an easement in his own land ; as all the uses of an easement are fully comprehended and embraced in his general right of ownership. Whalley vs. Thompson, 1 Bos. & Pul., 371 ; Gayetty vs. Bethune, 14 Mass., 49 ; Grant vs. Chase, 17 Mass., 443 ; Pheysey vs. Vicary, 16 M. & W., 483 ; Worthington vs. Gimson, 2 El. & El., 624; and Thompson vs. Waterlow, L. Rep., 6 Eg. Cas., 36. If apt and appropriate terms had been used in the deed, such as “with the ways now used,” or “ used with the land hereby conveyed,” they would have passed the right to such ways as had been actually used in connection with the part granted; not, however, as existing easements, but those terms would have operated to create new easements, for the benefit of the estate granted.

Washb. on Eas., (3rd Ed.,) 59. The general principle is, that no right in a way, which has been used during the unity of ownership, will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo. Pearson vs. Spencer, 1 B. & S., 571. In Gale on Easements, 81, it is said that “ upon the severance of an heritage a grant will be implied, first, of ³⁰⁹ all those continuous and apparent easements which have in fact been used by the owner during the unity, and which are necessary for the use of the tenement conveyed,