Wheeler v. Gilsey

Van Vorst, J. A right of private passage over another man’s ground is an incorporeal heriditament. It may arise either by grant of the owner of the soil, or by prescription which supposes a grant, or from necessity. (Washburn's Easements, p. 161, Kent's Com. vol. 3, p. 420.) . The right in question claimed by plaintiff does not arise either by grant or prescription. . The deed which the sheriff executed on the public sale of the property of Belknap to Neilson, the grantor of the plaintiff, did not purport in terns to make any such grant. Nor was there in the conveyance to the defendant Gilsey from his grantor, any easement or right of way reserved in favor of the owners of the adjoining lands. — 144 — The right claimed by the plaintiff therefor does not arise by the express terms of the conveyance to him, nor does it arise by prescription. It is true that Belknap, during all the period he owned the land, used the road in question as a means of egress from his dwelling to Eighty-fourth street, and of access to the same from the said street; and the evidence also shows that this road has been in use over said land in favor of the owner, and had been possessed by him for his own convenience for a period of some thirty years. But no one can be said to have an easement in his own land. An easement is something impalpable, of which a seisin cannot be predicated. (Washburn on Easements, ch. 1, § 1, sub. 13, p. 10; Washburn on Real Estate, vol. 2, p. 26.) By the unity of possession in Belknap of the entire land over which the road in question passed, no easement could be created by tlie owner’s use of the road, as long as there was no severance or division of the land. If a right of way be from close A to close B, and both closes be united in the same person, the right of way, as well as all other subordinate rights and easements, are extinguished by the unity of possession. (Whalley agt. Thomson, 1 Bos. & Pull. 371.) A prescription even may be lost by unity of possession, of as high and perdurable an estate in the thing claimed, and in the land out of which it is claimed, by such prescription, because it is an interruption of the right. (1 Inst. 114 6.) As for example, when one entitled in fee to a right of way, or of common, becomes seized in fee of the land itself. (Greenleaf Cruise on Real Property Title Prescription, vol. 3, p. 428, note.) But I am of the opinion that, on the ground of obvious necessity, the plaintiff is entitled to a right of way, as well over the land of Neilson, his grantor, as over the land of defendant Gilsey, which, joining on Neilson’s land, faces the south line of Eighty-fourth street. — 145 — Plaintiff has no means of access to or egress from his dwelling, except over the lands of third parties. When defendant. Gfilsey became seized of his lots, the road in question was in actual use, as a way to and from Eighty-fourth street to the dwelling house in question, over the land to which he acquired title. This road was the only means of communication by carriage way from the plaintiff’s dwelling to the public, open thoroughfares of the city, and had been so used for thirty years. It was a well defined and graveled way. This property is useless to the plaintiff as a dwelling, unless he has a way in the true sense, by means of horses and carriages, to the public streets; without such means of transit, he cannot provide himself with fuel and other things necessary for living. He is completely isolated and.shut up. This right of way by necessity may arise in favor of a parcel of land, when the same is surrounded by what has been the grantor’s other land, or partly by this and partly by that of a stranger. (New York Life Ins. and Trust Co. agt. Milner, 1 Barb. Ch. R. 353, 366; Collins agt. Prentice, 15 Conn. 39.) It is not confined simply to a right- over other lands remaining in the grantor, but it extends to a right of way over the lands of others. In Buckly agt. Coles (5 Taunt. 311) it was decided that if a person owned close A, and a passage of necessity to it over close B, and he purchased close B, and thereby united in himself the title to both closes, yet, if he afterwards sold close B to one person without any reservation, and then close A to another person, the purchaser of close A has a right of way over close B. While it is without doubt that a right of way of necessity arises and can be enforced, if a man sells land to another which is wholly surrounded-by his own land, I do not think that this right is limited merely to the remaining land of the grantor. It may be quite as important -for the party to have — 146 — a passage over the land of third parties, lying beyond the grantor’s land, to get to a public highway. But in this case, the lots of the defendant Gilsey came from Belknap, the owner of the plot, at the same sale in which title was acquired by Neilson to the property, a portion of which, and that out of which this right arises, he subsequently conveyed to plaintiff. The necessity out of which this right grows is always strict, and the right should continue only as long as the necessity continues. As soon as the plaintiff can have access to a public street directly from his own lands, the right should terminate. He cannot continue this means of using the land of Gilsey for an indefinite period of time; and it must of necessity be subservient to the right of Gilsey to build on his lots, so soon as the streets are open for him to improve them in that way. The defendant Gilsey, in his answer, says he has offered to give a way to plaintiff over his land twelve feet wide, the same to pass over another portion of his lot. This is an admission on the part of Gilsey that the claim of plaintiff is necessitous, and not unreasonable. The defendant may still do this; provided it is done in such a way as to enable the plaintiff by means of the new way to get to the public street. The right of selecting a place over which the new way shall pass, if one be yielded, lies with the owner of the land over which it is to pass; provided, on request, he shall designate it in a reasonable manner; and he may do it so as to be least inconvenient to himself. (Holmes agt. Seeley, 19 Wend. 507.) I am of the opinion that the closing up of the road in question would be such an injury to the plaintiff, and to the estate he has in the land, as to justify the continuance of the injunction issued in this action until the hearing of the cause. It is a well settled rule of equity that, where an easement or servitude is annexed to a private estate, the due enjoy — 147 — ment of it will be protected by injunction against encroachment or invasion. (Corning agt. Lowerre, 6 John. Ch. R. 439; Tallmadge agt. East River Bank, 26 N. Y. 105; Trustees of Watertown agt. Crane, 4 Paige, 510, 514.) In this case plaintiff claimed the easement in question. It was peaceably and without hindrance enjoyed by the owmer of the dwelling at the time defendant bought his lots; and I think plaintiff has a claim to the equitable interposition of this court'by injunction order, until Ms claim may be tried in this action. (Bonaparte agt. Camden and Amboy R. R. 1 Baldw. Cir. C. R. 231; Wetmore agt. Story, 22 Barb. 414; New Haven R. R. agt. Pixby, 19 Barb. 428.) Section 7 of article 1 of the constitution of 1846 does not apply to this case. That section provides for the opening of private roads; but in the case before us the way is already opened and in use, and has been used for a great many years. Its necessity is immediate and urgent. The motion to dissolve the injunction is therefore denied. In regard to the alleged contempt for its violation, it is to be observed that defendant Kilpatrick was not served wdth the injunction order until the 11th day of October, and after the fence was erected, and that he refrained from working immediately he was served with the process. Although there is some reason to believe that he attempted to avoid the service of the papers, I cannot find that he knew of the existence of the injunction before it was actually served on him. I am of the -opinion that the defendant Q-ilsey is responsible for the erection of the fence on his lands, after the sendee of the injunction on him. It appears that he had previously threatened to shut up the .road, and there is reason to believe that he encouraged and aided'in the making of the fence by Kilpatrick, and that Kilpatrick w/as acting with his know ledge, and to some extent, at least, under his directions, and that the construction -of the fence was a carrying out of his previous threat. At any rate, he had the power and it was — 148 — Ms duty to have prevented the erection of the fence on his land, after the service of the order on Mm. The work was done under Ms eyes and with his approval. The maxim uQui potest et debet vetare et non vetat, jubetf applies' to him. (Neale agt. Osborne, 15 How. Pr. R. 81; People agt. Sturtevant, 9 N. Y. R. 263, 278.) The motion to show cause why defendant Grilsey should not be attached and the fence removed is granted. As to defendant Kilpatrick it is denied.