27 N.H. 448 | Superior Court of New Hampshire | 1853
It has been held that if A. have an acre of ground in the middle, and surrounded by other of his grounds, and enfeoff B. of that acre, here of necessity a convenient way arises on B.’s behalf to go over A’s ground, as a necessary incident. Noy. 123.
It is the same though the close aliened be not totally enclosed by the grantor’s land, but partly by the land of strangers, for the grantee may not go over the stranger’s
It is said, in the plaintiff’s argument, that the only way of access to the mill lot is over that part of the Factory field which was the property of those under whom the plaintiff holds the mill lot, and by whom it was owned at the time of the conveyance of the mill lot to him, or over land at that time owned by third persons, and for the last twenty years or more a part of the same Factory field.
In the case of Perham v. Wead, 2 Mass. Rep. 203, it was held that if a judgment creditor extends bis execution on a part of his debtor’s land, so as to leave him no passage from the remainder of the land to the highway, the law gives him a way of necessity over the land extended upon. It was said by Parker, J., that the creditor “ might have taken the land in the rear with the house, or he might have left a passage way for the debtor, and had more land set off to him in lieu of that so left. He, therefore, must be considered as having chosen to take the whole front of the debtor’s land, knowing at the time that he shut him from all communication with the private or public ways of the town.”
It was alleged in the declaration that the plaintiff had no other way from his dwelling-house and close, described in the declaration, to the street or highway and back, but through and over the premises so extended upon by the said execution, without trespassing upon the lands of others, in which he had no right.
It is unnecessary to determine the question whether the plaintiff had a way by prescription. He had a way by necessity, and is, therefore, entitled to recover, and the defendants cannot retain the verdict.
Verdict set aside.
