Smiles v. Hastings

By the Court, Welles, J. The subdivision, map and partition of this whole tract, consisting of the original lots numbers 33 and 25, were the acts of all the heirs at law of John Atkinson, sen,, deceased, and they and their grantees are bound by those acts. The map was, in fact, part and parcel of the several conveyances mentioned in the case, as they all, either by express words or unavoidable implication, refer to and recognize it; and it is impossible to locate the lands described in them without resort to it. It exhibits the road in question as plainly and distinctly as it shows any thing else. The conveyances of lots Ho. 8 and Ho. 3, by William and Eliza S. Atkinson, through which the parties respectively derive their titles, must be taken and deemed as subject to, and controlled by, the map. These lots, Hos. 8 and 3, are bounded on the north by this road, and the owners of neither of them is at liberty to refuse to the other the enjoyment of the easement contemplated by the parties to the subdivision and partition of the whole tract. It is a servitude to which each is equally subject, and is of the same character and force as if created by express grant. By virtue of the release and conveyance to William Atkinson, of lot Ho. 8 by its number, on the partition between the proprietors, he became entitled, as part of the grant; to a right of way over the road laid, down on the map, as an easement, which, being appurtenant to the land, passed to the plaintiff by virtue of the conveyances through which he derives title to his part of the lot. Under the circumstances of this case, a right of way passed by the conveyance to William Atkinson, over the land of his [49] grantors, as a way of necessity, incidental to the grant, and without which the grant would be useless. The situation of lot No. 8 upon the map shows that there was no access to it by any public road, or any other means, without passing over the lands of other persons. The authorities referred to by the plaintiff’s counsel on this point, and many others, clearly establish this proposition. (G. & Whately on Easements, 54 to 57. 3 Kent's Com. 419 to 433. Shep. Touch. 89. Holmes v. Seely, 19 Wend. 507.) And this right, being appurtenant to the land, passed to the plaintiff. Where a right of way is thus implied from the necessity of the case, its particular locality is to be determined and assigned by the grantor in a reasonable place and manner; and if he declines, the grantee will be permitted to make the selection. In this case, the way or road laid down on the map may be reasonably regarded as settling before hand, by all the owners of the whole tract, the place where the right should be enjoyed. The ease shows that Elizabeth S. Atkinson, one of the tenants in common, and under whom the defendants claim, recognized and reserved this right in the particular place claimed, in her deed to Toody and Welsh; and the same reservation and recognition was preserved in all the conveyances through which the defendants derive their title from her. This, however, cannot benefit the plaintiff as a reservation, but it shows the defendants knew of, and took their title subject to, this right of way. This right of way has not been lost by non-user or adverse possession. It was acquired by force of the deed from the proprietors to William Atkinson. An easement acquired'by deed can never be lost by non-user. To be thus lost, it must have been acquired by use. The doctrine of extinction -by disuse, does not apply to servitudes or easements created by deed. In the one case the mere disuse is sufficient; but in the other, there must not only be disuse by the owner of the land dominant, but there must be an actual adverse user by the owner of the land servient. See Angell on Water Courses, ed. of 1850, p. 269, § 252, the language of which, nearly, I have appropriated. See also Arnold v. Stevens, (24 Pick. 106;) [50] and White v. Crawford, (10 Mass. Rep. 189.) And there was no adverse possession because, 1. The plaintiff and those under whom he claimed had no occasion to assert or use his right until he took actual possession of his land. (Arnold v, Stevens, supra. Doe v. Butler, 3 Wend. 149.) [Monroe General Term, March 2, 1857. We are of the opinion, therefore, that the plaintiff established his right to the easement claimed; and as the defendants refused to open the road, or to allow it to be opened, they are liable in damages therefor to the plaintiff. It seem to us, also, that the justice before whom the action was tried, should not have limited the plaintiff to nominal damages. The plaintiff offered to prove that he had- sustained damages by reason of the obstruction of the way in question by the defendants, which the justice refused; and held, as matter of law, that the plaintiff was entitled only to nominal damages. We are to intend that the evidence offered by the plaintiff was legal evidence of damages, and there appears no sufficient reason why it was excluded. That there was a portion of lot No. 8 which the plaintiff did not own, is not a sufficient reason. It does not appear that the owner of that portion would have objected to the opening of the way adjacent to his land, and it might have been that it was more convenient for the plaintiff to commence opening the road from the west end. Again, it would be of no use to the plaintiff-to open the road east of the defendants’ land, so long as they refused to allow him to open it along the north end of theirs. We think, therefore, that the plaintiff is entitled, either to judgment in his favor on the verdict, with costs, or to a new trial, with costs to abide the event, at his election. Ordered accordingly. T. R. Strong, Welles and Smith, Justices.]