136 Va. 30 | Va. | 1923
delivered the opinion of the court.
William Anderson Munden, hereafter called the complainant, instituted his suit against the appellants, here
The trial court entered a decree adjudging that “the plaintiff has a private right of way or easement over and through the land of the defendant, Harry L. Munden, the same funning in a northerly direction from the public road, and about 170 yards west of the house of the defendant, Harry L. Munden, to the farm of the complainant,” and awarded a perpetual injunction against any interruption or destruction thereof or interference with its proper and legitimate use by the complainant or his successors in title. It is-of this decree that the defendants complain.
The defense is based upon the claim that there has always been a public road running through both tracts of land along the edge of the marsh, and that the right of way claimed by the complainant is not a way of necessity, but that it was established solely for the benefit of the predecessors in title of Harry L. Munden, and that the right of the complainant to use it is only under a license revocable at the will of the owner of the servient tenement.
A careful consideration of the testimony fails to show that there ever was such a public road, but it does un
It seems to us therefore clear'that, as these two farms came from a common grantor, when the farm of the complainant was conveyed, a right of way across the servient farm to the established public road on the south of such farm was granted by implication. All that has been done since has been by consent of as well as for the benefit of the owners of both farms and the defendant who has accepted the benefits accruing from the change in the location of the old road is estopped from repudiating the agreement. It is manifest that the only access which the complainant has to any existing public road is across the farm of the defendant, Harry L. Mun-den, either over the abandoned right of way or the existing right of way which by consent, express or implied, has been substituted therefor.
The case is controlled by the principle announced in Scott v. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. Rep. 749; Muse v. Gish, 114 Va. 90, 75 S. E. 764; Hammond v. Ryman, 120 Va. 131, 90 S. E. 613, and the decree is plainly right.
Affirmed.