Smith v. Ladd

Tenney, C. J. Stephen B. Judkins was formerly the owner of the whole lot No. 41, and under him both parties claim. On Oct. 8, 1812, he conveyed a strip through the centre of the lot from east to west eighteen rods in width, to Jonathan Clough, leaving a parcel of the same lot on each side; and on March 17, 1813, he conveyed to Stephen B. Clough, the whole of that part of lot No. 41, lying to the north of that previously conveyed. Through several mesne conveyances, the plaintiff derived title to these two strips of land conveyed by Stephen B. Judkins. In the first of the deeds mentioned is a reservation or exception in these words, — “I do reserve a driftway from the county road, on to the east end of said lot, on to the south part, and across to the north part, ip the most convenient place, and another driftway on to the west end of said lot, where it will best convene me. And I do reserve the county road, that is across said land, and you are to have the privilege to come on to my land to get on to the east end of yours, if it is needed or thought convenient;” and in the second of those deeds is the following, “I do reserve a county road across said land and a driftway from that county road to get on to the west end of said lot in the most convenient place to accommodate me and Jonathan Clough.” On April 10, 1824, Stephen B. Judkins conveyed the remainder of lot No. 41, being the southerly portion thereof, to Samuel Wadley, who on August 23, 1834, conveyed the same to James L. Williams. On April 18, 1835, James L. Williams conveyed the same to John B. Williams, from whom it passed to the defendant by deed, dated Oct. 3,1835. The intention of the parties to the deeds containing the reservations mentioned is too manifest to be misunderstood. They do not purport to be of the right of way in gross to the grantor, and to him only. The county road is mentioned as reserved, and the driftway is to allow of general access on to the two ends of lot No. 41, from that road. The convenience and necessity of this way was as great to subsequent owners of the part remaining as to the original proprietor. [320] As Jonathan Clough was the owner of the strip, 18 rods in width, at the time the north strip was conveyed to Stephen B. Clough, it was certainly proper that the right of way across the latter to the road should be secured to the proprietor of the former, especially as such right was granted partially at least in the conveyance originally made to Jonathan Clough. The right of passage in one deed was where it would best convene the grantor, and in the other, in the most convenient place to accommodate the grantor and Jonathan Clough. This language cannot with propriety be limited in its construction, so as to confine the right of the driftway to the grantor and Jonathan Clough, but obviously has reference to the place of passage. "We cannot doubt that the reservation in each deed should be treated as an exception, and for the benefit of the portion of the lot which remained in the grantor, and they were appurtenant to that portion. Being so, they were appendages thereto, and passed with the land itself when it was conveyed, according to the principles which are treated as well settled in the case of Winthrop v. Fairbanks, [ante page 307.) It is contended that if the right of way reserved was appurtenant to the land, the title of which remained in the grantor, that this right could not extend further than to entitle the owners to the privilege of passing on foot. The language used must have a reasonable construction given to it, under all the facts and circumstances of the case. Nothing appears, by which we can infer that the right was designed to be thus restricted. A passage for teams at that time would be as necessary and as convenient in making the land profitable as for foot passengers. Indeed, the word itself in the deeds used to define the right has a more extended signification. “Driftway” is defined by lexicographers to be a “common way for driving cattle.” The parties evidently intended the privilege to extend to all such uses as might be convenient in the occupation and improvement of the land to be benefited. Plaintiff nonsuit. Rice, Appleton, Cutting and Mat, J. J., concurred.