Watson v. Hoke

The opinion of the Court was delivered by Mr Justice Woods. The sole question in this case is whether the defendant should be required to remove gates erected across plaintiff’s right of way over defendant’s pasture land and be enjoined from again erecting them. The facts are set out in the decree of the Circuit Judge, and this Court is fully satisfied with his reasoning and the conclusion that the erection of the gates was necessary for the reasonable enjoyment by defendant of his land over which the way passes, and that they do not constitute an unreasonable interference with plaintiff’s right of way. Whether the *364 owner of land over which a right of way runs has a right to erect gates across it depends upon the circumstances. The owner of the servient estate in farm land does not lose the right to enclose his land for agricultural purposes by reason of taking it subject to a private right of way, nor is it his duty to run a fence on both sides for the entire length of the way as laid out. He may enclose his land, using gates, provided they are necessary for the enjoyment of his property, and are not so numerous and of such size and construction as to constitute an unreasonable burden on the right of way. This is not only manifestly the reasonable view, but it is supported by many authorities, among which we may mention the following in addition to those cited in the Circuit decree: Whaley v. Jarrett, 34 N. W., 727 (Wis.); Short v. Devine, 15 N. E., 148 (Mass.); Green v. Goff, 39 N. E., 975 (Ill.); Bakeman v. Talbot, 38 Am. Decis., 279 (N. Y.), and note at page 281; Jones- on Easements, sec. 409. While the precise question was not involved or decided, very strong language to the same effect is used by Judge Nott, in Capers v. Wilson, 3 McC., 170. To' require the defendant to throw his pasture lands open would deprive him. of their use, and to require him to fence the right of way on either side would entail a most unreasonable burden upon him. On the other hand, the erection of two gates, which are well constructed, does not materially affect plaintiff’s enjoyment of his. right of way. The judgment of this Court is, that the judgment of the Circuit Court be affirmed.