38 Pa. 487 | Pa. | 1861
The opinion of the court was delivered,
— A right of way by grant was not much insisted on in this case, nor could it have been with much plausibility. No doubt a right of this sort will pass as an appurtenant, provided it is so in fact. But in the mortgage, which is the foundation of the title of the plaintiff in error, no such right was reserved. In fact, this could not have been done, as the property south of it belonging to the same party, had been previously mortgaged without any reservation of a right of way in favour of that lot. That is the property of the defendants in error.
Under these circumstances, the plaintiffs in error were forced to claim a right of passage through the alley in question as a right of way from necessity. The answer to this was obvious. They had a front on Third street of twent -six feet in width, and
“The right of way from necessity over the land of another,” says Huston, J., in delivering the opinion of the court in M'Donald v. Lindell, 3 Rawle 493, “is always of strict necessity, and the necessity must not be created by the party claiming the right of way. It never exists, when a man can get to his own property through his own land.” See also, Woolrich on Ways 17.
The usual instances of a right of way from necessity to be found in the books, are where there have been grants of land surrounded on all sides by other lands of the grantor, or by his lands and those of strangers, then if no outlet exists otherwise, then it will be a way of necessity over the grantor’s land. So will it be if the grantor retain the interior, and grant away the exterior land; Woolrich 20.
. Convenience is no foundation for the claim, nor is actual detriment to the possessionpf the claimant resulting from a necessity of a way through his own property, any reason to claim it through that of a neighbour. As the plaintiffs in error can undoubtedly have a way over their own ground to Third street, they cannot claim one as of necessity from any other owner. We think the court was right, under the evidence, in instructing the jury as. they did.
Judgment affirmed.
