84 Va. 796 | Va. | 1888
delivered the opinion of the court.
This was an action of trespass on the case for obstructing
We think this judgment is clearly right, (1) because the right of way was incident to the grant to John Willis, Jr. The way being appurtenant to the land, the grant of the land passed the right of way. Judge Tucker says: “So, if I am seized of close A. and close B., and use a way through close B. to A., the right of way passes by the conveyance of close A. And though the right of way cannot in strictness subsist when there has been unity of seizin, yet if a lessor, having used convenient ways over his own adjoining lands during his occupation, demises premises, with all ways and easements to the said premises belonging and appertaining, unless it be shown in evidence that there was some other way appurtenant alieno solo to satisfy the words of the grant, it shall be intended that he meant the ways used, and they shall pass, though he miscall them as appurtenant.” 1 Tuck. Bl. Comm. bk. 2, p. 5. (2) Because this is a right of way of necessity, not as necessary to the enjoyment, hut as a necessary incident to the grant. Without it, or some other like it over the same land, the grant would have been .defeated; and, as Mr. Blackstone says: “ When a man having a close surrounded by his own land, grants the close to another in fee for life or for years, the grantee shall have a right to a way to the close over the grantor’s land as incident to the grant, for without it he cannot derive any benefit from the grant. And this proceeds upon the well-established principle that, where anything is given, the law implies also a gift of whatsoever is necessary to
We think there is no error in the judgment complained, and the same must be affirmed.
Judgment aeeirmed.