Wiswell v. Minogue

The opinion of the court was delivered by Royce, Ch. J. In 1857, as the master finds and reports, [620] one Harris Morse conveyed, to Patrick Minogue, the father of the defendants, to whose title and rights they have succeeded, twenty-six acres of land in Poultney, reserving one acre “containing the slate quarry, as now partially opened for the purpose of quarrying slate,” and the privilege of purchasing, at a price designated in the deed, so much additional land “as is needful for quarrying purposes.” Under this reserved right, in 1866 Minogue sold and conveyed to the orator’s predecessor in title 3-fif\f acres additional to said original quarry acre, “to be used for quarrying purposes only,” and it being stipulated in that deed that the grantee shall “keep up the fences, gates, and bars whenever he shall find it necessary to open the same in passing to or from ” the quarry. At the time of both said conveyances there was, and ever since has been, a farm road leading from the quarry through the farm and to the highway called the Hydeville and Poultney road, across which farm road there has been, during all said period, and is, a gats or bars. There was, at the time of the oi'iginal deed to Minogue and has been since, no means of egress from the quarry other than said farm l'oad, unless over the lands and by the permission of other owners. The orator claims a right of way to and from said quarry, for quarrying purposes, over said farm road. The principle was adopted in this State in Tracy v. Atherton, 35 Vt. 52, that there is no such thing as a right of way created by mere necessity. Such a right must always have its origin in a grant or reservation, express or implied. When no express words are used, the condition of affairs at the time of the conveyance is to be examined, and the necessity is evidence to establish the implied grant or reservation. The correctness of this principle seems to be established at this day by undisputed authority. Goddard’s Law of Easements (Bennett’s Ed.) 263. And although some attempt was made by the English Courts [621] to establish a distinction between implied grants and implied reservations of such easements, on the ground that to recognize the latter would be to allow the grantor to derogate from his grant, it is now universally recognized, that, from the necessity of a right of way to .the reasonable use and enjoyment of land granted or reserved, is to be found an implied grant or reservation of such right, in the absence of some express negation thereof in the deed. Goddard’s Law of Easements, 267, 269. At the time of the original conveyance to Patrick Minogue, the farm road was an open and apparent way, furnishing a means of egress from the quarry to the highway; and there was no other means of egress save by passing over the lands of others. This situation has not practically changed since. The oi’ator has no means of getting out from his quarry lot, except by this farm road, without passing over the lands of third persons; which the report finds he has no right to do, unless by permission of the owners. This comes clearly within the strict definition of “necessity” as laid down by the authorities; and it is not necessary to consider the somewhat enlarged construction of the word which obtains in many cases. Goddard’s Law of Easements, 266 et seq. The claim of the defendants that the orator must purchase a right of way, if he desires one, under the reservation in the original deed is not tenable. The language used in that reservation is not apt to convey any such meaning; and as the way must be conclusively presumed to have been impliedly reserved, being a way of necessity, there is no occasion to enlarge the meaning of the words used or give them any other application than that which is so plain, and which has been acted on by both parties in the purchase and sale of the acres addition to the original quarry acre. We. think, further, that the language used in the deed [622] of March 20, 1866, from Minogue to Lloyd, with relation to the keeping up of the fences, gates, and bars, which could have had no application except to the way in question, is a clear recognition of the right to use that way, for quarrying purposes, as appurtenant to the premises and rights reserved by the deed of 1857. The decree of the Court of Chancery is reversed, and cause remanded with mandate that a decree be entered that the orator is entitled to the right of way first described in the master’s report, for the purposes and uses set forth in his bill.