Merrill v. Durrell

Allen, J. What may be the legal effect of a grant by a ten-ant in common to his cotenant of a right of way over the common property, or of a like grant by the owner of the entire estate-in his conveyance of an undivided fractional part of it ( Whitton v. Whitton, 38 N. H. 127, 133, 134; Ballou v. Hale, 47 N. H. 347, 350-352; Holbrook v. Bowman, 62 N. H. 313, 321; Marshall v. Trumbull, 28 Conn. 183, 184—186; Mendell v. Delano, 7 Met. 176 179, 180), need not be considered. The conveyed by Ray’s-deed in 1868 is “the use of the passway on the north of said premises as enjoyed” by him, “upon condition,” that is to say, his right under the deed of Davis to use for the purpose of a pass-way a narrow strip of land, not conveyed to him by Davis, for a period not exceeding twenty years. The defendant is entitled to use the portion of the lot lying between the dwelling and the-northerly line as a passway to other parts of the lot, not as a way by express grant or of necessity, but by virtue of his ownership thereof as tenant in common with the plaintiff. Upon partition a tenant in common is entitled to no particular-part of the common estate, but onty to his equal proportion of the- *110 whole. If necessary or desirable to a just division, a right of way may be given to one cotenant over the share assigned to another. Cheswell v. Chapman, 38 N. H. 14. In every case, what will be ■a fair partition is a question of fact for the committee, to be determined upon a consideration of the value of the entire property, of the several parts into which it may be separated, of the interests and convenience of the parties concerned, and of all ■other evidence. Doughty v. Little, 61 N. H. 365; Holbrook v. Bowman, 62 N. H. 313, 321. Case discharged. Blodgett and Chase, JJ., did not sit: the others concurred.