127 N.Y.S. 974 | N.Y. App. Div. | 1911
This case was before this court on appeal from an order continuing an injunction pendente lite (137 App. Div. 100), at which time
The defendant urges on this appeal that “ the defendant as a grantee of a right of way over this strip of land sixty-six feet wide, has a legal right to fill in any ravine existing in the right of way and to supply any deficiencies in order to constitute a good road over that right of way throughout its entire length and breadth,” and cites. Herman, v. Roberts (119 N. Y. 37) in support of this contention. We are of the opinion, however, that the case does not support the defendant’s contention. In that case the plaintiff purchased a right of way across the farm of the defendant for the purpose of reaching his country home; the object of the purchase for a carriage way was known to the defendant; the construction of the carriage way was attended with expense, and the defendant had asserted a right to make use of this private carriage way for the pur
It is perfectly good law, no doubt, that where a grant of a right of way is made by deed, the extent of the right is to be determined, not by user, but by the terms of the grant. But the terms of the grant are to be determined by the ordinary rules governing the construction of contracts and statutes; we are to read the whole contract in the light of the conditions surrounding its making, and when we
The judgment appealed from should be affirmed, with costs.
Jenks, P. J., Burr, Carr and Rich, JJ., concurred.
Judgment affirmed, with costs.