Pleas v. Thomas

1. Right of Way. Grant implied of necessity. Sale of interior land. One who sells land wholly surrounded by other lands of the seller, impliedly grants a right of way to and from the interior tract sold over the exterior lands retained. 2. Same. Reservation of implied, of necessity. Sale of exterior tract. When one sells his exterior and surrounding lands, retaining an interior tract, he impliedly reserves a right of way to and from the latter. 3. Same. Sale of tract surrounded by land of grantor and of others. When one sells lands surrounded in part by his other land and in part by the lands of strangers, a grant is implied of a way to and from the land sold over the exterior land of the seller. 4. Same. Controversies concerning. Rule for locating. In case of controversy concerning a right of way implied from a grant of interior land, the court should, upon establishment of the grant, so locate the way as to do substantial justice to the owner of the right, but not so as to unnecessarily damage his adversary. 5. Same. Conveyance A conveyance of land to which pertains a right of way by necessity over other lands, carries such right to the grantee; the right exists for the benefit of the party in whose favor it is g-ranted or reserved, his tenants and subsequent vendees.

From the chancery court of Holmes county. HoN. A. M. Byrd, Chancellor. Opinion states the case. A way of necessity arises when the owner sells land to another, which is wholly surrounded by land of the grantor, or partly by lands of the grantor and partly by land of a stranger, in which case a purchaser has the right of Avay through the grantor’s land to arrive at his own. 19 Am. & Eng. Enc. L., 96. The same rule will apply if the grantor retains the interior, and grants away the exterior, land. Ib.; 38 Pa. St., 487; 4 Gray (Mass.), 297; 64 Am. Dec., 76; 14 N. J., 44; 78 Am. Dec., 108; 7 H. & N., 732; 29 Texas, 74; 94 Am. Dec., '260; 56 N. H., 306. In leading cases, American Law of Real Property (Shars-wood & Budd, vol. 4, pp. 191-193, note), the principles of implication of a way of necessity are discussed. After laying-down the proposition, supported by numerous authorities, that when land is sold or leased and is so situated that access to it from the highway cannot be had except by passing over other land of the grantor or lessor, the grantee or lessee becomes entitled to a right to pass over the lands of his grantor or lessor for the purpose of reaching a highway and returning to his own land, the author says "that' the same implication of a way of necessity will arise in favor of land retained as in favor of that granted.” Citing 56 N. H., 307; 6 Cush., 132; 15 Conn., 39; 18 Id., 321. In 50 Miss., 414, the same principle is laid down. “An easement,” says the court, “ may be created or reserved when its existence is necessary to the enjoyment of that which is created or reserved, upon the principle that w.here one grants a thing to another, he thereby grants him the means of enjoying it, whether expressed or not. If A sell to B a parcel of land surrounded by other lands, and there is no access to the granted premises but over his own land, this gives the purchaser a right of way by implication over the seller’s land. ” Citing with approval 3 Mass., 203; 11 Me., 155; 8 Mass., 411; 136 Mass., 575; ,2 Pick., 574. These last cited cases being where the question of implied reservation of right of way arose by reason of sales of different parcels of the debtor’s land under executions, it being holden that there will be a way of necessity in favor of the part so cut off over the portion between it and the road. See, also, Washburn Real Property, vol. 3, p. 306, sec. 11, where the illustration is put, that if a person owns three tracts of land, and sells the two outside tracts, he has the right, in case of necessity, to pass through the tracts sold to reach the tract retained. 21 N. Y., 505; 18 N. J., 260; 38 Wis., 559. This court, in the case of Bonelli v. Blaolcmore, 66 Miss., 136, in its discussion recognizes the principles herein contended for, that a right of way by necessity may be granted or reserved by implication. It is true tljat the question was not necessarily involved in that case, as the court held that the way claimed was not one of necessity, and the way there involved was a noncontinuous easement, and did not pass under the deed. But the decision recognizes to its full extent the principles of law for which we contend. The grantors, from the circumstances of the case, reserved a way of necessity over the lands conveyed to their grantee, Thomas, and whilst it might apparently be in derogation of their grant and warranty, still, under the law, from the necessity of its existence to the enjoyment of the land reserved, it will be implied. In the reported cases, this way of necessity by implication over the granted lands, was in derogation of the grant and warranty of the grantor, and the doctrine of estoppel could not be invoked. The grantee’s remedy is on a suit for a breach of the warranty. If the McLeods had a right of way by necessity over the defendant’s lands, it passed by their deed to complainant herein. 66 Miss., 136; 50 Miss., 410; 4 Am. Lead. Cases on Real Property, p. 221; 55 N. Y., 98; 6 Col., 98; 30 N. IL, 380; 112 Mass., 224; 38 Conn., 566; 43 Ind., 30; 110 Ind., 117; Devlin on Deeds, sec. 863. It has been suggested that the existence of a statute authorizing the condemnation of land for private ways operates to do away with the right of way by necessity. The existence of such statutes in no manner affects the implication of a way of necessity. 4 Am. Lead. Cases on Real Property, 196; 15 Conn., 39. The deeds show that appellee acquired his rights about a year prior to appellant. His deed is a warranty deed. Appellant’s bill was drawn upon the theory that her purchase was prior to that of appellee, and that, by implication, she was granted the right of way across the land subsequently purchased by appellee. The bill shows that appellant never had any fixed or certain route across appellee’s land, and that it had been changed a number of times, and was seriously obstructed. No mandatory injunction was sought, but only one restraining further prosecution and threats. There are three modes by which easements may be acquired, namely, by express grant, implied grant, and prescription. Prescription presupposes a grant to have existed. But this is merely saying that an easement, being an interest in land, can be created only by grant, the existence of which may be established by production of a deed expressly declaring it, or may be inferred by construction from the terms and effect of an existing grant, or a grant may be inferred from the right having been enjoyed for a great length of time. In case of an express grant, the fact of the creation'of the easement, as well as its nature and extent, is determined by the language of the deed, taken in connection with the circumstances existing at the time of its execution. An easement may be created or reserved by an implied grant when its existence is necessary to the enjoyment of that which is expressly granted or reserved, upon the principle that where one grants anything to another, he thereby grants him the means of enjoying it, whether expressed or not. Perhaps the most delicate jurisdiction ever exercised by a court of chancery is to restrain by injunction the use of property by the owner, on the allegation that such use will be annoy ing or injurious to the property of another. Oreen v. Lake, 54 Miss., 542. If, under any circumstances, equity would give relief, as against appellee, a bona fide purchaser for value, it should be in a manner least detrimental to him, which, in this case, would be a way across his pasture, one hundred yards, to the Bowling Green road. But this relief was not asked. A way is not the right of wandering everywhere on the land over which it is exercisable. long v. GHll, 80 Ala., 408. A way, therefore, must be defined, it must have its limits and termini. Oliver v. IIooJc, 47 Md., 301. For, as said by Morton, J., in Jones v. Pei'cival, 5 Pick., 485, “a way, ex vi termini, imports a right of passing in a particular line,” and equity will not establish or protect a way which is too indefinite for a determinate description. Fox v. Fierce, 50 Mich., 500. Away of necessity is not implied unless the land conveyed is wholly surrounded by that of the grantor. Presp. v. Patterson, 29 Me., 499. This was not the appellant’s case. “Mere convenience and usefulness will not establish a right to a way of neces-. sity. ” Afí&yns v. Bordman, 4 Leading Cases of American Law of Beal Property, 194, and authorities there cited. “The right cannot exist where the highway can be otherwise reached. ’ ’ Ih., and authorities there cited. Appellant could otherwise reach the highway.