Hart v. Chalker

Hosmer, Ch. J. A way, whether public or private, is the right of going over another man’s ground. 2 Black. Comm. 34. The owner of the land retains all the title he ever had, encumbered only with the right of passage ; and may vindicate every damage to his property, with the exception of the travel across it, by an action of trespass. Lade v. Shepherd, 2 Stra. 1004. Stevens v. Whistle, 11 East, 51. Peck v. Smith, 1 Conn. Rep. 103. It is, therefore, unquestionable, that the defendants had no right to dig the soil, and put up their reel and capstan, by virtue of the highway. If the plaintiff had granted to the defendants, the privilege of going upon his land with a competent number of persons, and drawing their fish-seine by hand, it would not be pretended, that they would have right to erect a reel and capstan on the premises. As little ground is there for insisting, that a user for fifteen years, literally conformed to the preceding grant, would admit of any other construction. A usage, supposed to be founded on a grant or agreement, determines the extent of the supposed grant or agreement. The right granted is considered as being commensurate with the right enjoyed. They are different media, proving precisely the same fact ; and it is because of this indentity of proof, that the usage is supposed to evince the grant. If the grant is something different from the usage, then the usage does not prove the grant ; and if it prove it at all, it necessarily proves it throughout. In short, like a seal and its correspondent impression, the grant and the usage are, in point of proof, precisely and identically the same. It was therefore said, in the argument, with perfect correctness, that the usage was the letter of the grant. In Stanley v. White, 14 East, 332. 340. Lord Ellenborough observed, that "the terms of an antient grant now lost, must be collected from the manner in which the right presumed under it has been exercised." The cases cited by the defendants’ counsel, do not conflict, in the least, with the above principle. With the exception of one [316] case only, they were the construction of grants, and conformably to the plain meaning of their expressions. Gerrard v. Cooke, 2 New Rep. 109, Senhouse v. Christian & al. 1 Term Rep. 560. Hodgson v. Field, 7 East, 613. The case of Ballard v. Dyson, 1 Taunt. 278. decided, that evidence of a prescriptive way for all manner of carriages, does not, necessarily prove a right of way for all manner of cattle. The principle of the decision was the one before stated ; that the extent of the usage is evidence of a right, only commensurate with the user. I can never admit, that the habit of fishing, by drawing in a seine by hand, authorizes the erection of a reel or capstan, or a fish-house, or any thing else, not embraced by the usage. If the controversy between the parties had related to the mode of doing an act, I could not assent to the principle, that even the mode could be changed, unless the grant, as proved by the usage, would authorize such a construction. The alteration of the manner may not injure the owner of the soil ; but he always has right to say non hœc in fœdera veni ; and what tribunal shall assume a construction, which his grant has not authorized ? The controversy, in this case, however, does not respect an unessential mode. The claim of the defendants obviously, is, to use the property of the plaintiff more than the terms of the grant, as proved by the usage, ever admitted. A short seine may be managed, by a few hands, and without the apparatus of a reel or capstan ; but a long seine indispensibly requires them. A small number of men, by hand, can draw in a seine of twenty rods in length ; but enlarge it to eighty or an hundred rods, and then a capstan becomes indispensibly necessary. The defendants claimed the right of an extensive and material use of property not granted ; and the principle stated by the judge, in his charge, in subversion of a demand so inadmissible, was entirely correct. Peters and Brainard, Js. were of the same opinion. Bristol, J. dissented. New trial not to be granted.