| N.H. | Jun 15, 1867
Unless, as matter of law upon the face of reserva
The proof offered by the plaintiff would tend to show such passageway to have existed for forty years next preceding the conveyance in question, and that during that time one of the gates had been all the time maintained, and the other in October in each year, and that both gates were needed for the use of the farm. It is true that the gate most used, according to the proof offered,, was open at the date of the deed to Hoyt, which was February, 1863 ; but there was nothing inconsistent with the position that the way was used with gates at the time of that conveyance. •
Assuming, then, to be true what the plaintiff offered to prove, as we must do-in determining this question, we must, take it that the usual passage-way referred to in the deed was used with gates; and interpreted in the light of that fact, we think the grant cannot, on the case presented, as matter of law, be held to. give a right of a way without gates or bars. Looking at all the words of the grant, assuming the existence of a way used with gates, and taking into consideration the unquestioned fact that the grantee was to pass and repass in that way, we think that this must be taken to be a grant of the free and uninterrupted use of the way as then existing. The grant is, indeed, carelessly and inartificially drawn, but as it is now presented, the intention to grant the use of an existing way and that only, appears to us to be manifest, and against this construction, there is nothing in the nature of the case or in the language used, except the terms "free” and "iminterrupted” use that affords much ground for discussion; but when we consider that most private ways, and many public ways, are used with bai-s and gates, and that provision is made by law for. laying out such, we can readily perceive the propriety of using those terms in granting the use of such a way, without intending that the gates should be removed. If it be a grant of the use of an existing way which is subject to gates or bars, the provision that the grantee shall have the free and uninterrupted use of it, must be construed to mean the use of it as it then is, and subject to such gates and bars, but without other and further impediment. This qualification of the use does not imply a change of the way by removing the gates, any more than the construction of abridge by the grantor over a brook which might at times be otherwise impassable, but rather qualifies the right of using the way as it then was.
These views are countenanced by well established principles pertaining to this subject. It is laid down in 2 Kent’s Com. 537, sec. 629, that it is a principle of law that nothing passes as incident to the grant of an easement but what is requisite to the fair enjoyment of the privilege. In Atkins v. Boardman, 2 Met. 457" court="Ky. Ct. App." date_filed="1859-12-24" href="https://app.midpage.ai/document/wintersmith--young-v-pointer--conway-7129813?utm_source=webapp" opinion_id="7129813">2 Met. 457, the same principle is recognized in an elaborate opinion by Shaw, C. J., and it is there held that the owner of the soil retains all the rights and benefits of owner
Again, in Washburn on Easements, it is laid down that where one grants a right of a private footway across his land, he may shut the termini of the same by gates which the grantee must open and close when using the same, unless an open way is expressly granted. Eor this is cited Maxwell v. M’Atee, 9 B. Mon. (Ky.) 20, which holds that the grant of a way without any reservation of a right to maintain gates, does not necessarily imply a negation of the owner’s right to do so, and this is fully sustained by the decision in Bean v. Coleman, 44 N. H. 539.
In this case the defendant conveyed land to the plaintiff reserving a passway on the southerly side of the field wall in the common wheel-way. The court hold that the owner of the land has the full dominion over and use of it, except so far as a limitation of his right is essential to the fair and reasonable enjoyment of the way, and that the fact of there being no express authority to maintain gates did not necessarily negative the right to do so, but rather that the owner of the way had a right to such reasonable use of the other’s land as would be consistent with his right to occupy and improve it.
Again, in determining what is requisite to a fair enjoyment of a right of way, in the absence of express stipulations, it is competent to consider how and in what manner it has been previously used, as tending to show not only what was necessary, but by implication what was intended; and so it is held in Atkins v. Boardman & al., 2 Met. 464, before cited.
From this review of the cases it is evident that unless an open way is expressly granted, the owner of the land will be at liberty to use convenient gates or bars where they are required for the proper use and protection of his fields, unless the nature and objects of the way granted are such as to indicate a way not to be subject to gates and bars; and this comes naturally from the doctrine that the owner of the land shall be permitted, in the absence of express stipulations or necessary impli
In view of these principles a construction of this grant that would compel the grantor to remove his gates,, and fence out this way, would seem to ps, as the case now stands, to be forced and unreasonable.
The nonsuit must, therefore, be set aside.