Bass v. Edwards

Morton, J. We find some difficulty in ascertaining from the bill of exceptions the precise question of law intended to be submitted to us. As we interpret it, the Superior Court ruled that Mrs. Edwards, by the deed from her father and by the partition between herself- and her brother, acquired a right to a defined and located way, passing into Granite Street through “ the walled passageway;” that she had no other right of way over the plaintiff’s land, and that, if the plaintiff obstructed and closed this way, she had no right to deviate from it and pass over his land in any other direction. Her land and the land now owned by the plaintiff were formerly owned by their father, Lewis Bass. In 1871, he conveyed one of the rear lots to Mrs. Edwards. _ He died in 1873, and by his will devised all of this land of which he was then seised to the plaintiff and Mrs. Edwards. In 1874, they made partition by mutual deeds, by which Mrs. Edwards acquired title to the other rear lot. Both of her lots are separated from the public road by the land of the plaintiff. Neither of the deeds to Mrs. Edwards contains any express grant of a right of way, and, as there is no access to her land, it is clear that she is entitled to a way of necessity over the front land. It appeared at the trial that Lewis Bass for many years, in going to and from the rear land, had followed the same direction or path, which had become marked by the tracks of wheels. And the plaintiff now contends that this constituted a defined and located way, which was annexed defacto to the rear land, and which passed by implication to Mrs. Edwards, and therefore that, as this way furnished access to her land, she had no way by necessity over the front land. In order to raise an implication that a certain way passes by a [449] deed, it must appear that the way was de facto annexed to the estate conveyed at the time of the grant, and that it was reasonably necessary to the enjoyment of the estate. Parker v. Bennett, 11 Allen, 388. Carbrey v. Willis, 7 Allen, 364. Buss v. Dyer, 125 Mass. 287. When Mrs. Edwards bought her land, it was necessary for the enjoyment of it that she should have a right of way over the front land to the highway, but there was no necessity that the way should follow this particular route. Equally convenient ways could be used over other parts of the land. The mere fact that the grantor had for a long time used a particular route, adopted because it furnished a convenient approach to his rear land, would not justify the implication that he intended to convey a right to this way so as to exclude his right to assign any other practical and convenient way to the highway. Upon the facts of this case, we are of opinion that Mrs. Edwards could not claim, by an implied grant, a right to a defined and located way passing to the highway through “the walled passageway,” but that she is entitled to a way of necessity over the front land. It may be that the use of this way by the grantor before the conveyance, and by the grantee after, may operate as an assignment or designation of this way as a convenient one, which would deprive the grantee of the right to use any other route while this was unobstructed. If this be so, yet it was a way of necessity, not limited by grant to a particular route, and it is well settled that, if the owner of the servient estate obstructs or closes such a way, the owner of the dominant estate has the right to deviate from the usual way and go over other parts of the land, doing no unnecessary damage. Leonard v. Leonard, 2 Allen, 543. Farnum v. Platt, 8 Pick. 339. We are therefore of opinion that the court erroneously ruled that the defendant, as the agent of Mrs. Edwards, had not the right to pass over the adjoining land of the plaintiff. The plaintiff now contends that this ground is not open to the defendant under the pleadings, but this point was not taken in the Superior Court, and is not properly before us upon this bill of exceptions. Exceptions sustained.