Sargent v. Hubbard

Ames, J. The lot of land upon which the alleged trespass was committed was conveyed by the defendant to the plaintiff’s grantor, with a reservation of a right of way over it, “ between Bryant’s land and the house, to my (defendant’s) land as usually occupied, subject to gates and bars.” Under this reservation the defendant would have the right to make use of the way, as the same had been marked out or designated by the parties in interest, in any reasonable manner, and according to common usage, for the purpose of taking away the hay, or any other crop, that he might raise upon the land referred to. There is nothing in [383] the case as reported, to show that there was anything unusual or peculiar, either in the magnitude or shape of the load which he was carrying along the way at the time of the alleged trespass. It is expressly stated that the limb of the tree extended across the way at such a height above the ground that he could not pass with the load; that it was a matter of necessity, from the situation of the barway, to pass under the tree; that before passing he had requested the plaintiff to cut off the projecting limb; and that the plaintiff had refused to do so himself or to permit the defendant to do so. It is difficult to see why the defendant had not the same right, under these circumstances, to remove this obstruction, that he would have had to smooth the surface of the way, or to pry out a rock that interfered with its use. It is a mistake, in our judgment, to interpret the reservation as restricting the defendant to the use of the way for loads of the same size as he had usually carried over it before that time. The reservation is not expressed with entire precision, but the words “as usually occupied” appear to us to refer to the land to which the right of way is attached, rather than to the way itself. But however that may be, it seems to be the more reasonable interpretation to consider these words as indicating that the right is to be exercised for the general purposes incident to the cultivation and removal of the crop, rather than as intended to limit in advance the size and shape of the loads to be conveyed. Upon this view of the case, there was an error in the direction to the jury, and therefore the Exceptions are sustained.