No question is made but that the plaintiff is entitled to a right of way or passage across the north end of the defendant's land. The extent of that right, and the duty of the respective owners towards each other, is to be determined by the language of the reservation and the circumstances of the case.
The plaintiff insists, in substance, that the defendant was bound to keep open a narrow road or lane across the north end of his land, or if he will not do this, that he should, at least, insert swinging gates in his fences which might be opened and shut with ease whenever the plaintiff had occasion to pass.
What the defendant did, as I understand the testimony and the judge's conclusions, was to subdivide his land in the manner which he found convenient for its occupation, running the fences quite to his northerly line, making arrangements, however, at the place indicated for passage, by which the bars or rails could be readily removed and conveniently replaced when the plaintiff should have occasion to go through.
This would no doubt be somewhat less beneficial to the plaintiff than either a clear space like a common road, or a series of gates which could be opened and shut like doors. But it would be much less onerous to the defendant, who, upon the plaintiff's position, would have to forego the use of a considerable strip of land, and, in addition, to build a lateral fence across the whole north end of the premises, or to incur considerable expense in erecting gates.
I am of opinion that the defendant's position presents the more reasonable view of the case. The main object of the reservation in the commissioner's report, was to enable those of the proprietors who should become the owners of the lots most remote from the highway to go upon and pass over the land of the others situated between them and the highway, without committing a trespass, and to define the direction of such passage. We are not to intend that it was designed to make the burthen unnecessarily onerous.
The circumstance that the land was wholly in forest, and that the primary purpose indicated was the carrying of wood and timber, do not suggest the necessity of a thoroughfare like a highway, or an unimpeded *Page 369 private way. If the passage was made as convenient as the mode of access which a farmer usually provides for himself, to get to and from his wood land, it seems to me that the purposes of the reservation would be confirmed. De Groot formerly possessed the whole farm.
It was about to be sub-divided and assigned in severalty to different owners. It would be improper that those to whom back lots were assigned should be precluded from getting to the highway except by committing a trespass, or by claiming a way by necessity, a right but little known and not of convenient application.
Moreover the exigencies of the case did not contemplate a constant use of the passage, but only such an occasional use as the resort to wood land would require, and such as the plaintiff has since exercised.
There is no reason to believe that if the plaintiff, besides owning the back wood lot, had also been the proprietor of the intervening cleared land, he would have found it necessary or thought it expedient to have fenced out a lane, or have erected these gates for his use in passing to and from his timber land, and if he would not have done so it is unreasonable to require it of the defendant.
The defendant certainly has no right to preclude the plaintiff from availing himself of the right of passage, or to render the exercise of that right unusually or unreasonably difficult or burthensome. I think he is not shown to have done so. It must be kept in mind that the plaintiff's lot is still wood land. It may remain so for many years; but it may be cleared up and cultivated, and have buildings erected on it and be applied to such uses as to require constant and frequent passage between it and the highway.
There is nothing inconsistent in holding that the present arrangements are suitable and sufficient under existing circumstances; and after these circumstances have changed, and the question shall arise as to what shall then be proper, to determine that a passage perpetually open or a system of gates better adapted to such increased use than the present fences and bars, shall be required of the defendant.
It would not be right at this time to oblige the defendant to furnish facilities for a state of affairs which may *Page 370 never arise, or which may not arise until some remote period. The doctrine that the facilities for passage where a private right of way exists, are to be regulated by the nature of the case and the circumstances of the time and place, is very well settled by authority. (Hemphill v. The City of Boston, 8 Cush., 195;Cowling v. Higinson, 4 Mees.
Wels., 245.) The last case determines, in effect, that the extent of the privilege created by the dedication of a private right of passage depends upon the circumstances, and raises a question for the determination of a jury. If, therefore, in the present case I felt less confidence in the conclusion I have stated than I do, I should hold the question had been settled by the judge sitting in the place of a jury in a manner that we could not disturb. The judgment should be affirmed.
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