4 N.H. 380 | Superior Court of New Hampshire | 1828
delivered the opinion of the court.
One of the questions to be decided in this case, is, whether the grant by Moses Clark, of two of his closes with their appurtenances, passed a way through another close belonging to him, and which had been used to pass from one of the granted closes to the other ?
This question is believed to be well settled. There is no doubt, that when one man has a right of way through the close of another, which right of way is appurtenant to his land, a grant of his land with its appurtenances will pass the right of way. But a man cannot have a right of way through his own land, independent of his right to the land. Moses Clark may have had a way through the locus in quo. But his right to it was not an easement. There was no existing easement.
The question, then, is, whether by a grant of two lots with their appurtenances, a new easement in a third lot can be created ? It seems to be well settled, that by the word appurtenances, existing easements alone can pass. 1 B. & P. 371, Whalley v. Tompson; 3 Taunt. 24,
A way through the locus in quo might have been granted by the use of proper terms. Thus, if the two closes granted by Moses Clark, had been granted with all ways commonly used with them, a new right of way through the locus in quo might have been created and passed. But the word appurtenances, is clearly not sufficient for this purpose.
We are therefore of opinion, that no right of way through the close in question, passed by Moses Clark’s grant.
Another question in this case, is, whether the evidence offered by the defendant was sufficient to show the existence of a highway through the locus in quo 9
We entertain no doubt, that a highway may be proved by long usage. But a way to become public,’ must be used in such a manner as to show that the public accommodation requires it to be a highway, and that it is the intention of the owner of the land to dedicate the way to the public. 3 N. H. Rep. 335, Pritchard v. Atkinson; 2 ditto, 513, The State v. Campton.
In this case, there was no evidence that the road u as ever opened, or made or repaired. There was no at tempt to offer any evidence which showed an intention in the owner of the land to dedicate the way to the public, or that the public convenience required the way.
And we are clearly of opinion, that the evidence was properly rejected as wholly insufficient to prove a highway.
One other question is, whether the declarations of Moses Clark, denying the right of way through the locus in quo, were, under the circumstances, admissible in evi
—The-deiendsqf .attempted to show, an uninterrupted use of the way for more than twenty years. To meet this, evidence, the plaintiff showed that the owner of Jhe close had ploughed up the way, denying the right of way. This, evidence comes within the rule laid down in Downs v. Lyman, 3 N. H. Rep, 486, “that where it is necessary in the course of a cause to enquire into the nature, of a particular act, and the intention of the person who did the act, proof of what the person said at the time of doing it, is admissible in evidence for the purpose of showing its true character.
The declarations of Moses Clark were admissible, to show that his act was adverse to all claims of right on the part of others to the -way.
