Shroder v. Brenneman

The opinion of the Court was delivered, by Woodward, J. It is a well-settled rule of law, that if a man have a right of way over another’s land to a particular close, he cannot enlarge it and extend it to other closes, and this whether his right be by user or by deed: Rolle 391, Howell v. King; 1 [351] Mod. 190, Henning v. Burnett; 8 Exch. Rep. 192, Davenport v. Lawson; 21 Pick. 72, Kirkham v. Sharp; 1 Wh. 323, Lewis v. Carstairs; 6 Wh. 207. The reason of the rule is stated in Howell v. King, and runs through the subsequent cases, that if the law were not so the owner of the close to which the right is appurtenant might purchase an indefinite number of adjoining acres, and annex the right to them, by which the grantor of the way might be entirely deprived of the benefit of his land; a reason which applies with all its force to a private alley like that in respect to which this suit was brought. Entitled to the use of this alley for the purposes of the lot purchased of Metzgar, if Shroder can use it also for the convenience of the lot he purchased from Withers, there is nothing to prevent his use of it in connexion with any other lots he may purchase along the alley, and thus Brenneman may be annoyed with the general use of a right granted only for a special purpose. The right is not personal to Schroder, but appurtenant to his one specific lot, and the necessary limitation of its extent is found in the terms of the grant. It cannot be carried beyond, without invading the reserved rights of the grantor, for which case is the appropriate remedy. The action was evidently brought to test the rights of the defendant rather than to recover compensatory damages, and therefore he was not injured by the rejection of the evidence contained in the bills of exception. The judgment is affirmed. Lewis, J., was absent during the argument.