Pleas v. Thomas

Woods, C. J., delivered the opinion of the court. At and before the time the appellee purchased his land from the McLeods, the appellant was occupying her little lot of ground under a verbal contract of purchase from the McLeods, and was, and for some considerable space of time had been, using, as a way of ingress and egress to and from her premises, the old wood road of the McLeods, which wood road is, substantially, the private way of necessity now claimed by appellant in this suit. It is true that appellant acquired her paper title to her lot of ground about a year after the appellee acquired his, [500] but this fact will not deprive her of her right to a way of necessity over his lands. For, when he acquired title to his exterior lands, which partially surrounded the interior lot then' occupied by appellant, and title to which was retained by the McLeods, his vendors, this old wood road not only existed and was used by appellant in passing to and from her house, but it was and is the most convenient way of ingress and egre'ss for persons using and occupying appellant’s premises. It is wholly immaterial that appellant did not secure a paper title to her interior lot until after appellee had secured his to the exterior partially surrounding lands, and that he might, therefore, have regarded her as only a tenant of the McLeods when he bought and had his title deed put to record, for the reason that the McLeods, the then owners of both pieces of land, that of appellant and that of appellee, for themselves, their tenants, and their subsequent vendees, by implication retained a right of way of necessity over the exterior lands so acquired by appellee. Now, as already stated by us, this way was then marked out and in use by appellant, and was, as we understand the evidence, the nearest and most convenient route by which Lexington, the county town close at hand, and the public highway leading to it, could be reached. It is well settled law that one who sells a parcel of land to another which is wholly surrounded by the other lands of the seller, impliedly grants a right of way to the interior lot so sold over the exterior lands retained. And when one sells his exterior and surrounding lands, but retains the interior lands for himself, the rule is the same as to a way of necessity over the exterior lands. And when one sells interior lands surrounded in part by the other lands of the seller and in part by the lands of strangers, the implied grant of a way to the interior land exists over the exterior lands of the seller. The reasons need not be sought afar, for they are obvious at a glance, and they are these — viz.: (1) The owner of the interior land co'uld neither reach nor use his land unless a way to it existed [501] or was capable of being brought into existence, the right to use, occupy and enjoy being essential to impart value to the land; and (2) this essential right is to be sought in the grant of the seller of the interior lot, and the buyer is not to be driven to seek to acquire a way over the lands of other adjoining owners. Naturally he would have, under such circumstances, no right to make and use a way over the lands of third parties, and, by law, he could only hope to do so by costly and vexatious proceedings, whereas, by the conveyance of the interior lot, everything was granted which was absolutely prerequisite to reaching and occupying and using the interior lot. It is idle to talk about the appellant having and being able to maintain a right to a way over Rhynes’ or Byron’s and the town’s cemetery land. She has no such way, and had not when either she or appellee bought their lands from the Mc-Leods. It is true she might be permitted to make a way over Rhynes’ land, or over Byron’s, and that of the town, but she has no right so to do. If allowed, it would be purely of grace on the part of the stranger owners. The principles of law governing the case are not doubtful, but their application to its peculiar facts is difficult and delicate. To compel appellee to abstain from interference with appellant, or her family, in the use of the old road, as laid down on the map shown in the transcript, or as deflected, by reason of obstructions placed in and across the old way by appellee, would, it seems to us, prove unnecessarily burdensome and hurtful to appellee. If a way near the old one can be found, it would appear harsh and oppressive to now, in effect, require the appellee to reopen the original way by tearing down fences or buildings and reopening gardens or other inclosed lots about his residence. But that the appellant must be permitted to use a way, and a convenient way for all ordinary purposes, is too clear for controversy, and, as we see the physical facts disclosed in the record, no great difficulty will be encountered by the court below in granting the substantial relief prayed by appellant, on [502] the one- hand, and in so granting this relief as not to seriously damage appellee’s property, as it now stands, on the other hand. If necessary to this end, the appellant should be permitted to amend her bill on this point and in this particular. The decree of the court lelow is reversed, the injunction restored, and the cause remanded for further proceedings.