Burnet v. Crane

The opinion of the court was delivered by The Chancellor.

The existence of the easement claimed by the plaintiff in error will not justify the exclusive possession which she has taken of the land. Such possession is not necessary to or authorized by a mere right of way, and is inconsistent with the right of the defendant in error, which the present action is brought to vindicate. A clear and generally-accepted exposition of the law here applicable is found in the language of Mr. Justice Bigelow, in Morgan v. Moore, 3 Gray 319 , 322: “It is no answer to this action [action by writ of entry] that the tenant is the owner of an easement in the demanded premises, and has therefore the right, as against the demandants, to use it forever as a passageway. The right to a fee and the right to an easement in the same estate are rights independent of each other, and may well subsist together when vested in different persons. Each can maintain an action to vindicate and establish his right, the former to protect and enforce his seizin of the fee, the latter to prevent a disturbance of his easement. The demandants can therefore well maintain their writ of entry, because, as the tenant is in, occupying the- entire premises and denying the demandants’ seizin, this is the appropriate remedy by which to assert their title to the fee. And their recovery in this action will in no way affect or impair the rights of the tenant in the easement in the premises.”

The correctness of this statement was recognized by Mr. Justice Depue, who, in writing the opinion of the Supreme Court of this state, in Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken, 7 Vroom 540, said that, although it had been decided by the Supreme Court of the United *288 States that a municipal corporation may defend ejectment at the suit of the owner of the fee, by setting up the right of possession in a street or common under the rights acquired by the public in a dedication to a public use, the rule was otherwise in case the servitude was a mere private easement. In Wright v. Carter, 3 Dutcher 76, ejectment was brought by the owner of a fee in a highway, among other things, because of the erection of a toll-house in the highway on his land. The Supreme Court held that .the toll-house was not a servitude additional to the public easement of way, but upon that point the Court of Errors and Appeals, without opinion, reversed the decision, the effect of the reversal being to establish the right of the plaintiff in ejectment to recover subject •to the easement of way against-the appropriation of the land to a purpose not within the limits of the easement. State v. Lavarack, 5 Vroom 201 ; Wuesthoff v. Seymour, 7 C. E. Green 66; Citizens’ Coach Co. v. Camden Horse Railroad Co., 6 Stew. Eq. 267.

The rule stated is not only well founded in principle but is also sustained by authority. Goodtitle v. Alker, 1 Burr. 133; Hancock v. Wentworth, 5 Metc. 446 ; Jamaica Pond Aqueduct Co. v. Chandler, 9 Allen 159 ; Proprietors, &c., v. Nashua and Lowell Railroad Co., 104 Mass. 9 ; Reformed Church v. Schoolcraft, 65 N. Y. 134 ; Strong v. City of Brooklyn, 68 Id. 11; Cooper v. Smith, 9 Serg. & R. 26, 31; Warwick v. Mayo, 15 Gratt. 528, 548 ; Boyling v. Mayor, &c., 3 Rand. 563 ; Sedg. & W. Trial Tit. Land, § 132 and note.

The judgment below will be affirmed.

For affirmance—The Chancellor, Chief Justice, Depue, Garrison, Lippincott, Reed, Bogert, Krueger, Phelps, Smith. 10.

For reversal—Abbett. 1.