| Mass. | May 23, 1882
The bill of exceptions shows no error in the admission of evidence. The action is for tort in passing over the plaintiff’s planted land. The answer of Perry justifies his passing over in a way which he claims to have been a regularly located way of necessity. The other defendants justify as the servants of Perry in a proper use of such way.
In support of the defendants’ answer, evidence was offered tending to show that very many years ago there was a way across the plaintiff’s lot, where Perry claimed the way to be; there was evidence also tending to show that for almost every year from 1824 to 1834 those who at that time owned the Perry lot passed across the plaintiff’s land in gathering the crops from the Perry lot, and there was also a plan introduced showing the relative positions of the plaintiff’s lot, the Perry lot, and the highway, and the way as claimed by the defendant. This evidence was competent evidence, but by no means conclusive, of a right of way by necessity. The relative position of lots is always an element in determining whether there be a right of way which the law designates as a right by necessity, but it is not conclusive evidence of such way.
But such right of way is not a right to go indiscriminately over any part of the land of the grantor, but a certain, definite, fixed way, defined either by the agreement of the parties, or by the designation by the grantor, or, upon his failure to locate, by
It is probable, though the bill of exceptions indicates nothing of the kind, that the two lots might have once had a common owner, and perhaps we may deem it probable, although this does not appear in the bill of exceptions, that the Perry lot was first sold. The plaintiff denied that there was a way of necessity, and contended that, if such a way was ever attached to the Perry lot, it had never been located. It does not appear by the bill of exceptions what instructions were asked in reference to the mode in which a right of way by necessity could be acquired, nor the mode of its location, nor whether it could by any means be extinguished, nor in what manner it could be extinguished; and it is therefore to be presumed that proper instructions were given upon all those subjects, and that the evidence which was admitted was limited by the presiding judge to the subjects on which it was competent. Apparently, both parties relied for their respective claims wholly upon the mode in which the crops were taken from the Perry lot, from the time longest remembered by any witness, to the present. The mode in which the crops had been taken, by whom and under what circumstances, and by what route, during all this period, was therefore competent evidence, when tendered by either party. How far inferences might be drawn from that testimony by the jury, whether it was sufficient to establish a way by necessity or not, was wholly a question for the jury, under proper instructions from the court; and nothing appears to show that such instructions were not given. The fact that for the last forty-five years the crops had been generally taken away by some person other than the owner of the land, was competent in a variety of aspects. If there was a way appurtenant to the Perry lot, and the product of the lot was from one to two tons of salt grass, the jury might well consider whether Perry would have pointed out to the purchaser such way and authorized him to go in it, or whether he would leave the purchaser to solicit or purchase a privilege to take off such crop, as he could best bargain for it; or, in other language, did he enjoy that lot and the income to be derived from it in the mode and to the extent to which one would who had an absolute right in a way to it.