Phipps v. Johnson

Chapman, J. The deed of Martin and Herrick to the defendant contains the following reservation: “ And the said Herrick, his heirs and assigns, is to have the right and privilege to pass and repass over the above granted premises for the purpose of repairing his building at all times when necessary, the said pass-way to be only a foot passage for said purpose.” This was not a reservation of a right to pass at all times; and intervals of many months or years might elapse in which there would be no occasion to make repairs. During these intervals there would be right to use the way. And as the plaintiff might need to occupy more space in passing for the purpose of making some kinds of repairs than he would need for making other repairs, the way, though a mere foot way, was not definitely located. For all purposes consistent with this occasional right of way, the right to use the land was conveyed to the defendant. It would be construing his deed very strongly against him to hold that he is bound to keep the land free from all obstructions, at all times, so that this passage way can be used without notice. It would deprive him of the use of the land to an unreasonable extent. Nor is there any occasion to require this of him. The making of repairs requires some preparation, so that the owner of the building may, without detriment to his own rights, give reasonable notice that he is about to repair and will have occasion to use the way. Considering the purpose and character the reservation, and construing the deed most strongly against [29] the grantor, the court are of opinion that the defendant was entitled to reasonable notice that the plaintiff was about to repair, before being liable to an action for obstructing the way. Ii it were not so, he could not even place a cart or wagon upon it temporarily without exposing himself to an action for damages. This decision renders it unnecessary to consider the other points that have been discussed. Exceptions overruled.