Chandler v. Goodridge

The opinion of the Court was prepared by Tennev J. The land set off in the partition to John Gpod-ridge by metes and bounds, with all' the privileges and appurtenances thereto belonging, embraces the premises in dispute, and gives a title, subject only to the exception containéd in the commissioners’ report. The counsel for the plaintiffs contend that this exception carries a fee in the land described as a passage way over the flootn on the south side of the pond, twenty feet wide and leading from the county road at the south end [82] of the bridge to the grist mill, where said road is now trav-elled ; but if the fee is not by the language of the exception in the plaintiffs, it is insisted, that the privilege in them is exclusive, and that the defendants have no right to participate in its enjoyment. The plaintiffs are entitled to the privilege of a passage way ; this is the language on which they endeavor to maintain their action, and by the construction put thereon, it must stand or fall. The word passage way cannot be any broader in its signification than way or highway, and can have essentially no different meaning. It must have been used to convey an idea similar to that which is attached to the term way, although it was not contemplated, that it would be located by authority of law, like town ways or highways. A way is an incorporeal hereditament, and is a right of passage over another man’s ground. 3 Kent’s Com. 337. In Huslius v. Shippam, 5 Barn. & Cres. 221, the Court say, “aright of way or a right of passage for water (where it does not create an interest in the land) is an incorporeal right and stands upon the same footing with other incorporeal rights, such as rights of common, rents, advowsons, &c. Terms de la Ley, a book of great antiquity, defines an easement to be a privilege, that one neighbor has of another by charter or preemption without profit, and instances, “ as a way or sink through his land or such like.” In Comm. v. Peters, 2 Mass. R. 125, Sedgwick J. remarks, “ where land is appropriated to the use of a highway, the use only is taken; and except so far as that goes, the right of soil remains precisely as it was before. So rriuch so, that the. owner of the soil may recover in ejectment, subject however to the easement; and he has a right to the freehold and all the profits above and under ground, except only the right of passage.” In Perley v. Chandler, 6 Mass. R. 454, Parsons C. J. says, “ by the location of a way over the land of any person, the public have acquired an easement, which the owner of the land cannot extinguish or interrupt; but the soil and freehold remain in the owner, although encumbered by the way. And every use to which the land [83] may be applied, and all the profits, which may be derived from it, consistently with the continuance of the easement, the owner can lawfully claim.” The grant of a sawmill, “ with a convenient privilege to pile logs, boards and other lumber,” conveys only an easement in the land used for piling. Thompson & al. v. Androscoggin Bridge, 5 Greenl. 62. In the case at bar the privilege to the plaintiffs cannot by any construction extend beyond the right of a passage way, which gives to them. an easement only over the land in question. The right of the defendants to the land is encumbered by the right of the plaintiffs to pass and repass over it as described in the exception. To the plaintiffs’ right, is incident that of rendering the passage way at all times safe and convenient; and for this purpose he could erect railings where the situation of the ground made it proper for such enjoyment. But in doing this he could not unnecessarily deprive the other party of any of the rights, which flow from his title to the fee in the land; he could not, unless essential to his own privilege, exclude the defendants from any use, to which they might wish to appropriate the land. The pond within their limits was equally the freehold of the defendants, who were entitled to the free and uninterrupted access from one to the other for all and every purpose not inconsistent with the right secured to the plaintiffs. Unless it were necessary to the enjoyment of the easement belonging to the plaintiffs, they could not take to themselves any exclusive occupation of the premises, or exclude therefrom the defendants. The latter could roll logs from any part of the land falling to them on the partition, unless it impaired the plaintiffs’ right of passage. If the rights of both could exist together without interference, the law will allow and require it. If the privilege of the plaintiffs could have been preserved by their erecting a railing, which would have permitted the enjoyment of the defendants, it was the duty of the plaintiffs so to have constructed it, and by omitting to do this, the defendants’ rights were [84] invaded, and they were justified in'causing the removal. The cause was submitted to the jüry on these principles, and the verdict cannot be disturbed therefor. The passage way. was to be located on the- south side of the millpond, and to be twenty feet wide, and to. extend from the county road to the gristmill. A way imports a right of passing in a particular line. If a man grant a right of way over his land, designating the course of it between certain termini, the grantee has no right to deviate from the course designated. A right of way can only be used according to the grant, or the ■ occasion from which it arises. One having a right of way in’, through, over and along a slip of land, cannot have a way across.-the land. ■ These doctrines, found in .the cases cited for the defendants, are reasonable, and are well established. Whenever an easement exists, by grant, it may be enjoyed to the .extent of the legitimate meaning of the terms used, but to that it must be confinéd. • In-this case the .termini, the width of the passage, and the part of the lot,- where it rvas to run, were fully expressed in the Commissioners’, report. The plaintiffs had-no right to deviate from the limits as laid down. The millpond, as it existed at the time of the partition, was excluded, so that the passageway would be southerly thereof. -If any erections were made in, or over the pond as it was at the time of the division, it was unauthorized, and could be legally removed by the defendants. The writ contains nothing upon which the jury could have assessed damages for incumbering and obstructing the passage with logs, and the instructions to the jury were in this respect unobjectionable. . .The evidence offered, that in the opinion of.witnesses, the railing torn down was necessary to the safety and convenience of the plaintiffs in the enjoyment of the passage was properly excluded. That was the question for the jury to determine from all the facts, and not from the opinions of others of what their verdict should be. Exceptions overruled.