Ogden v. GroveOgden v. Grove
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 faсt. But in the mortgage, which is the foundation оf the title of the plaintiff in error, no such right was reserved. In fact, this could not hаve been done, as the property south of it belonging to the same party, had been previously mortgagеd without any reservation of a right of way in favour of that lot. That is the proрerty of the defendants in error.
Under thеse circumstances, the plaintiffs in еrror were forced to claim a right of passage through the alley in quеstion as a right of way from necessity. The answer to this was obvious. They had a frоnt 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,
The usual instances of a right of way from necessity to be found in the books, are where there have been grants оf land surrounded on all sides by other lands of the grantor, or by his lands and those of strаngers, 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 extеrior land; Woolrich 20.
. Conveniencе is no foundation for the claim, nor is аctual detriment to the possessiоnpf the claimant resulting from a necessity of a way through his own property, any reason to claim it through that оf a neighbour. As the plaintiffs in error cаn undoubtedly have a way over their оwn 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.