Higbee Fishing Club v. Atlantic City Electric Co.

| New York Court of Chancery | Feb 24, 1911

Leaming, V. C.

1. It is well settled that a right of way ovei a grantor’s land arises when such grantor sells land wholly surrounded by other land which he retains, or when the part sold is surrounded in part by the land retained and in part by that of a stranger, over which there is no right of access. In such cases the way is a necessary incident to the grant, for without it the grant would be useless; the grant is necessarily for the beneficial use of the grantee and the way is necessary to the use. Stuyvesant v. Woodruff, 21 N. J. Law (1 Zab.) 133, 155; Lore v. Stiles, 25 N. J. Eq. (10 C. E. Gr.) 381, 383; French v. Smith, 40 N. J. Eq. (13 Stew.) 361, 362; 3 Kent Com. *420; 14 Cyc. 1174 note 33. By the grant to complainant a way of necessity over the remaining lands of grantor was undoubtedly created in favor of complainant.

2. I think it also clear that the sale of the remaining land from complainant’s grantor to defendant was not operative to extinguish complainant’s rights. Defendant does not occupy the position of an innocent purchaser without notice of complainant’s rights. An examination of the record title of defendant’s grantors woiild have disclosed not only the conveyance to complainant but also the prior conveyance to the railroad company. The physical conditions then apparent disclosed complainant’s isolated lot with no highway as a means of access to it. Not only were these conditions reasonably apparent but defendant, before purchasing, had a survey of the entire premises made and the four corners of complainant’s property were staked by defendant as well as the several corners of the tract which defendant was about to purchase. These physical conditions thus actually ascertained by defendant, in connection with the information disclosed by the record, were clearly operative to charge defendant with notice of complainant’s rights.

3. The jurisdiction of this court to determine complainant’s rights and to locate the part of defendant’s land over which said rights may be exercised has been recognized and acted upon in Camp v. Whitman, 51 N. J. Eq. (6 Dick.) 467. See, also, Pearne v. Coal Creek Co. (Tennessee), 18 S. W. Rep. 402.

4. In Camp v. Whitman, supra, it was found as a fact that at the time of the grant the parties actually contemplated a use of the premises granted which required a way for vehicles, and accordingly it was there held that the way should be suitable for such use. In the present case, however, no evidence of that nature exists. On the contrary, the physical conditions surrounding complainant’s lot were of such a nature that a way for vehicles could not well be deemed to have been contemplated by the parties at the time of the grant, and indeed such a way does not seem to have become at any time necessary to the use to which the lot has been devoted. In view of the principles defined in London v. Riggs (1880), L. R. 13 Ch. Div. 798, I am unable to find justification for a right of way -of necessity in extent more than a footway.

5. The claim on behalf of defendant that complainant is entitled to use the property of the railroad company for access to his lot is clearly untenable. A right of that nature could only be acquired by grant or adverse user for twenty years.

If the parties can agree upon the route of a footway I will advise a decree accordingly, otherwise there may be a reference to a master to determine it.