Hart v. Connor

Hinman, J. This was an action of trespass for entering upon and digging up the soil of the plaintiff’s land. The acts complained of were done under the authority of William H. Noble Esq., who had been the owner of the locus in quo, which, together with other adjoining land, on the 9th of December 1850, he conveyed to the plaintiff by deed of warranty, containing the following reservation. i( Reserving the right, on payment at the rate of $500 per acre, and interest thereon from this date, to open a highway three rods wide, from said north line, not further west than the 7th post from said railroad abutment, on said railroad line, to and into the land of Isaac Burrough’s wife aforesaid; the western side of said road, on the south, not to go further west than the centre between two hole posts, now standing on the line of said Burrough’s land aforesaid : said Noble to elect within one year, as to the opening of said highway across said land : reserving to myself all the earth and trees growing on said highways ; and on said north highway, the gravel down as low as grade of New York and New Haven railroad, or lower, if thought best for highways.” Within the year from the date of his deed, Mr. Noble elected to open the highway over the disputed premises, and it is not denied that, as designated by him, it comes within the terms of the reservation. It crossed the land conveyed to the plaintiff, not further west than the 7th post from the railroad abutment, and ran to, and into the land of Isaac Burrough’s wife; and no question is made, but that all that was necessary to be done under the reservation, was done, before it was attempted to open the road. But it was located across one end or side of the land, and along by the side of another highway, on which the whole tract conveyed was bounded; and the claim is made, that this location is contrary to thé intention of the parties, as expressed in the reservation. But we think the power to select a location for thé road can not be controlled by the boundaries of the land; and, so long as there is nothing in the deed which prohibits the selection being made, so as to lay the new road across one end of the land and along by another road, that selection must [336] stand. East of the post mentioned in the reservation, there is nothing to limit the right of Noble, except that, at one end, it'must run into or to the land of Mrs. Burrough’s. And the express limitation of certain points on the west, beyond which the road was not to go, with none on the east, shows that it was not intended to limit the right on that side. The plaintiff claimed that the right of opening a highway under the reservation must be exercised in a “ reasonable manner, according to the views of the jury, in view of all the surrounding circumstances and the situation of the premises.” We suppose this means that the jury were to judge of the reasonableness, of the exercise of the right, in respect to the place where said road should be opened, and in this aspect, if any answer to the claim is needed, we think it has been answered already. And the court certainly gave the plaintiff all he ought to claim, when the jury were told, that Noble had full right under said reservation to exercise his own judgment fairly, and to open or elect to open a highway, within the given monuments, over said premises, wherever he judged best, provided he did not act wantonly, &c.; and as the verdict was in favor of the defendants, they have no occasion to complain of the charge. But previous to the opening of the road for which this action is brought, Mr. Noble had elected to open a road under the reservation, in another place, and had commenced laying it out in such place ; and the plaintiff claims that his former election is conclusive upon him, to prevent any other laying out or opening of a road under the reservation. Had the first election been a legal exercise of the power reserved, we do not see why the effect claimed for it would' not follow. But as it was not a legal exercise of the powe'r, and was not acquiesced in by the plaintiff, we think it has no effect to prevent another election, which is within the power. The road first located did not cross the land from the railroad, so as to “run to and into the land of Isaac Burrough’s wife.” It did not touch that land, and of course was not the road contemplated and reserved in the deed. Still had the plaintiff acquiesced in such unauthorized location and [337] opening, and had not interfered to prevent it, as not within the reservation, perhaps Noble might be estopped from making another selection. However that may be, the plaintiff did not acquiese, but, on the contrary, he caused an injunction to be issued against the opening of the road as first selected. We do not see therefore how that selection can now be used to prevent a legal execution of the power. We- place no other reliance upon the fact that Noble was prevented by injunction from opening the road at the place first selected by him, except that it shows that the plaintiff did not acquiesce in that location; the injunction having issued at his instance. This circumstance, in connexion with the fact that the location was one which the parties did not contemplate as proper to be made, and which the reservation did not justify, leaves the power wholly unexecuted, except by the location last made, and under which the acts complained of were performed for the purpose of opening the road thus located. For these reasons the court do not advise a new trial. In this opinion, the other judges, Waite and Storrs, concurred. New trial not to be granted.