Bailey v. Copeland

WRIGHT, J. Before anyone can recover for the interruption of' a right of way, he must show that he has a right to be interrupted. It is conceded that no public alley was laid out here and dedicated to the public, according to our law. The intention to do so was-once formed, but was abandoned. It is claimed that the right to use-this alley as a private way was incident to the fee of the ground conveyed to the plaintiff, and it was, therefore, embraced in the deed to him. The incident, accessary, appendant, and regardant, will in. most cases pass by the grant of the principal, without even theAvords cum pertinentiis; and, by operation of law, if a man grant a .piece in the middle of his land, he at the same time impliedly grants a way to come at it; Shep. Touch. 89 — F. N. B. 183 — 1 Saund. 323, n. a. One may establish a right of Avay by prescription, by grant, by reservation, by implication, or by OAvelty of partition; 3 JBac. Ab. highway, G. There is no express grant here, and the right comes, and is to be made out, if at all, by implication. It does not result from necessity, because the land granted was not surrounded by that of the grantor, therefore the Avay was not necessary to the enjoyment of his ground. It Avas bounded only on two sides by the grantor — on one side the defendant’s lot bounded a street. The plaintiff by his own act cut off the communication from the rear of his lot to the street, by erecting a house on the front. Was the right necessaiy, appendant or appurtenant to the piece of ground granted to the plaintiff? The plaintiff’s ground did not exist as a separate parcel until the conveyance to him. How could the right to pass into Second street along the ground marked as an. 152] :!:alley, pertain to this ground? It is supposed the call in the deed affects this question, but we cannot see how it does. The call in a deed for a non-existing object neither creates nor passes any interest in such object. Besides, the call was to designate the outer limit of the grant, and not to convey anything beyond it.’ If there Avas fraud practised upon the plaintiff in the sale and conveyance to-him, this action Avill not afford remedy against fraud. The plaintiff submitted to a non suit.