80 Va. 835 | Va. | 1885
delivered the opinion of the court.
The tract of land owned by M. P. Linkenhoker, the appellant, to which he is, in this proceeding, seeking to have a public road established over and through the land of M. Graybill, ap-pellee, is the southern portion of the tract which was assigned to Mrs. Susan M. Radford, in the division or partition Of the lands of her father, John Preston, deceased, lying north of the town of Amsterdam, in the county of Botetourt, Virginia; and it is part of that which was assigned to Mrs. Mary R. Copland, daughter of Mrs. Susan Radford, in the division of the latter’s estate, and which was afterwards conveyed by Peter Copland and Mary R., his wife, to appellant, by deed dated 25 July, 1878. Lying south of the aforesaid Susan Radford tract, is the farm now owned by the appellee, M. Graybill, containing 361 acres, which was conveyed to the said appellee, Graybill, by deed from F. T. Anderson and wife, dated December 15th, 1854.
Appellant’s tract of land, lying above, is, practically, in the shape of an isosceles triangle, with the base-line on the north, resting on the residue of the land assigned as aforesaid, to Mary R. Copland, out of said Susan Radford’s estate; and with the other two sides adjoining, on the east and on the west, the lands of Graybill, appellee; the said triangular tract of appellant running south to the vertical angle, jutting down into the said Graybill’s land, and lacking only the distance of the proposed road, 65-|- poles, of cleaving his said farm in two.
The prayer of the appellant is, that this court will reverse the decision of the county and circuit courts of Botetourt county, which courts refused to establish a joublic road over and through appellee’s land, in favor of that part-of the Radford land which is owned by the appellant, containing 93 acres and 92 poles.
From the record it appears that there is, appurtenant to the
From the evidence it appears, that the farm owned by the appellee, Graybill, which would be cut into two separate and disconnected parts, on different sides of the proposed public road, is a very valuable grazing farm, most admirably adapted to grazing and stock raising, and complete in all its appointments and arrangements for that purpose; with pasture lands, woodlands for shade, and water, all in proper and essential relation to each other; all of which would be broken up, as well
In purchasing his tract of 93J acres from Copland and wife, appellant required his grantors to covenant with and guarantee to him, a right of way out, by a route along the outside line of the Radford lands, in a westerly direction, to a public road; and to establish which, the damage to the Radford land would be only the value of the land taken for the road, and in no degree commensurate with the injury, damage and loss which would be inflicted upon appellee by cutting his farm in twain by a public road; which the evidence in the cause, and, indeed, the report of the viewers, appointed by the court, of the proposed site of the road through the land of the appellee, explicitly and unqualifiedly say, will be of no public use or benefit, and will be only for the use and benefit.of the appellant.
But, if the appellant’s grantors had not guaranteed a way out; and if there were not appurtenant to' the land, the old, immemorial right of way, reserved by the commissioners as aforesaid, the Radford lands, of which appellant’s 93-£ acre tract is a part, ought to bear the burthen of a way out, ex necessitate, claimed by the appellant. “If a person voluntarily take a conveyance of land, which is surrounded, on all sides, by lands of his grantors and others, he can enforce this right of way under plea of necessity, against none but his grantor.” 1 Lomax Dig., marginal page 528; Kimball v. Cochecho R. R. Co. 27 N. H. 448; 59 Amer. Decis. 387; 35 Amer. Decis. 302. “A way over the grantor’s lands exists, to a close granted, as incidental to the grant.” 1 Lomax Dig. marginal p. 527.
Easements follow the land into the hands of an assignee, and “the division of the dominant estate does not destroy the easement; and the owner or assignee of any portion of that estate may claim the right so far as it is applicable to his part, provided the right can be enjoyed as to the separate parcels, without any additional charge upon the servient tenement.” Hills v. Miller, 3 Paige (Ch. N. Y.) 254; 24 Amer. Decis. 218. “Where land is granted with a right of way, that right is appurtenant to every part of the land thereafter granted.” Watsonv. Bioren, 1 Sergeant & Rawle, (Pa.) 227; 7 Amer. Decis. 617. “Where a judgment creditor levied on a part of the debtor’s lands, leaving the latter no passage from the remaining portion to the highway, the debtor has, necessarily, a right of way over the land levied upon.” Pernam v. Wead, 2 Mass. 203; 3 Amer. Decis. 43: Taylor v. Townsend, 8 Mass. 411; 5 Amer. Decis. 108. “ Grant of continuous and apparent easements is implied on severance of heritage, where, though having no legal existence as easements, they have in fact been used by the owner during the unity of heritage, or when they are necessary to the full enjoyment of the several portions of the heritage.” Elliott v. Rhett, 5 Richardson, (S. C.) 405 ; 57 Amer. Decis. 750: note to
We are of opinion that the judgment of the court helow, complained of, should he affirmed, and it is so ordered.
Judgment aetirmed.