Pettingill v. Porter

The recitals in a recent deed, as to the ownership and boundaries of land adjoining that which is conveyed therein, are not admissible in evidence against one who has subsequently become the owner of the granted premises, and who claims a right of way over the adjoining land, as appurtenant to other land held by him under a prior deed from the same grantor; although both the grantor and grantee are dead. No exception lies to the refusal of a judge to rule as a matter of law upon a question which involves the determination of facts in dispute. A way over other land of the grantor in a deed may pass as appurtenant to the land granted, although there are no insuperable physical obstacles to prevent access by another way, if such other way cannot be made without unreasonable labor and expense; and, ir» determining this question, a jury may consider the comparative value of the land and the probable cost of such a way.

Tort to recover damages for the obstruction of a way, by erecting a fence across it. The action was originally brought oy Moses Pettingill, and after his death was prosecuted by the plaintiff as his administratrix. At the second trial in the superior court, before Ames, J., after the decision reported in 3 Allen, 349, the plaintiff claimed the right of way in question as appurtenant to a certain piece of land owned by her intestate in his lifetime, with a dwelling-house thereon ; and introduced in evidence a deed thereof from Warren Porter to Moses Welch, dated December 8, 1846, and a subsequent deed thereof from Welch to Moses Porter, and of the administrator of Porter to her intestate. Neither of these deeds contained any express grant of the way; but conveyed the land, with all the privileges and appurtenances thereto belonging. The defendants, for the purpose of taking advantage of the recitals contained therein as to the boundaries and ownership of the adjoining estate, over which the way was alleged to exist, offered in evidence a deed of Warren Porter to Moses Welch, dated June 14, 1848, conveying a small lot of land, and describing the lot over which the way was alleged to exist as land of the grantor. The land conveyed by this deed was subsequently conveyed to the plaintiff’s intestate. This deed was excluded, although it was shown that the grantor and grantee named therein were both dead. It appeared that the estate conveyed by Warren Porter to Moses Welch, described in the deed put in by the plaintiff, was part of a larger estate,, which said Warren Porter took by devise from his late father, Zerubbabel Porter; and it also appeared that, from a period before the commencement of the present century to the time of Warren Porter’s last described deed, Warren Porter or his father owned all this larger estate. It also appeared that a small lot, which adjoined or was carved out of this larger one, was conveyed by Zerubbabel Porter in his lifetime, through a third person, to Mary Porter, his wife; that she died intestate in the lifetime of her husband, (who died in 1845,) leaving Warren Porter aforesaid and Elias Endicott Porter as her heirs at law. Adjoining to the smaller and larger estate was a triangular piece of land, claimed by the defendants to fa)' partly within the larger and partly within the smaller lot, and to have been originally a part of the highway. The plaintiff’s deed included part of it, and the fence complained of was erected upon the boundary line. The record of the court of sessions was produced, by which it appeared that, if this constituted a part of the highway, it. was discontinued in 1807. Evidence was introduced, but not of any witness who remembered as far back as the discontinuance of the highway, or farther back than the time when Zerubbabel Porter owned both the large and small lot, of the use of the alleged way over this triangular piece of land. It appeared that the triangular piece of land had lain open from time out of mind, and no evidence as to the ownership was offered, except what appeared from the title to the adjoining lots and the discontinuance of the highway; but the ownership was in dispute, and it was also in dispute whether the same was ever a part of the highway, and discontinued as aforesaid. The defendants requested the court to rule that there was no evidence of the existence of any right of way by prescription up to the time of Warren Porter’s conveyance to Moses Welch, less than twenty years before the date of the plaintiff’s writ; but the judge refused so to rule. The judge ruled that no right of way over what was Warren Porter’s land when he made the conveyance to Moses Welch would pass by that deed, unless it appeared that the grantee could not obtain access to his place by another route, without unreasonable labor and expense. It appeared that the estate conveyed had a large front upon the highway; that there were no insuperable physical obstacles, such as ledges, swamps, or the like; that the soil was light and easily worked; that the road and adjoining estate, especially in front of the plaintiff’s house, were about upon a level; and there was no evidence to show that any greater difficulty would be found in constructing the road suggested than over any field through which it might be necessary to construct a carriage road, or at any rate nothing more than a single culvert to allow the passage of surface water after heavy rains. Upon this state of facts, the defendants requested the court to rule, as matter of law, that there was no evidence to be considered by the jury of the necessity of unreasonable labor and expense in constructing a new road. The judge refused so to rule, but ruled that the deed under which the plaintiff claimed conveyed whatever was necessary to the beneficial enjoyment of the estate granted, and in the power of the grantor to convey ; that it was not enough for the plaintiff to prove that the way claimed would be convenient and beneficial, but she must also prove that no other way could be conveniently made from the highway to her intestate’s house, without unreasonable labor and expense; that unreasonable labor and expense means excessive and disproportionate to the value of the property purchased; and that it was a question for the jury, on all the evidence, whether such new way could be made without such unreasonable labor and expense. Under this ruling, the plaintiff introduced evidence as to the amount of labor and expense necessary for the construction of such new way; and both parties introduced experts, who computed the probable cost of constructing a new road. The plaintiff argued, by comparison with the consideration money named in the deed, that the cost of a new road would be out of proportion to the cost of the land. No evidence was offered of the value of the land. The defendants’ counsel requested the court to instruct the jury that such a comparison would be irregular, and that it did not appear that the consideration money paid was not less than it would have been if the necessity for building the new road had not existed. The judge ruled that the jury might take into consideration the probable cost of a new road, compared with the value of the land, but did not instruct them as requested, as to inferences from the consideration named in the deed. The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.