47 Md. 301 | Md. | 1877
delivered the opinion of the Court.
The appellant brought his action in the Court helow to recover for the alleged obstruction of what he claims to he his private right of way over the land of the appellee.
There is no question arising on the pleadings that we are required to decide. The questions presented here arise solely on the prayers :offered hy the appellant, which were rejected, and the instruction of the Court that there was no evidence before the jury upon which they could find a verdict for -the plaintiff.
It appears that, in 1847, Charles N. Jessop, being owner of a tract of land, of about 220 acres, conveyed to one John Minnick 15J acres, part of such tract; and that the part so conveyed was- surrounded by other portions of the land of the grantor, and the lands of one Joshua F. Cockey. The appellant claims under Minnick, and now owns and occupies the land that was conveyed to the latter by Jessop in 1847.
In 1850, Charles N. Jessop sold the residue of the tract of 220 acres to William Jessop, and the latter sold the same soon after to Feast, and, in 1865, Feast sold off a portion to the defendant Hook, and subsequently sold the residue to Presstman.
It also appears, and is indeed conceded, that no part of the land of Charles N. Jessop, nor of that sold to Minnick, bounded upon any public road or highway ; but access to the public highway from said land was had by going over private ways through the land of a neighbor. The way claimed by the appellant, as described in his declaration, is a way from the land embraced in the deed to Minnick, “over the land of the defendant, and then through a private road, leading out to the present highway leading from Warren Factory to the York road.”
It is contended hy the appellant, and at the trial below he offered proof tending to show, that, at the date of the deed to, Minnick, the only lawful access to the land con
Upon this state of the case, as presented by the appellant, his counsel contend that, inasmuch as the way was in existence and apparent at the time of the making of the deed to Minnick, it passed as incident and appurtenant to the land conveyed, by force and operation of the terms employed in the deed. But we are not of that opinion.
• The deed is for a specific piece of land, being parcel of a larger piece held and owned by the grao tor, and described by metes and bounds. In such case, in the absence of apt and express terms, no specific way outside the limits of
The general principle is, that no right in a way, which has been used during the unity of ownership, will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo. Pearson vs. Spencer, 1 B. & S., 571.
In Gale on Easements, 81, it is said that “ upon the severance of an heritage a grant will be implied, first, of
This is a very just and beneficial principle in those cases to which it is properly applicable, and it has been fully sanctioned in this State; but it would seem to be well settled that it does not apply to the case of an ordinary way, like the one in controversy here, not being at the time an existing easement. Grant vs. Chase, 17 Mass., 447-8 ; Worthington vs. Gimson, 2 Ell. & Ell., 626 ; Pearson vs. Spencer, 1 Best & S., 583-4 ; Dodd vs. Burchell, 1 H. & Colt., 113, 120. Hence the case of Janes vs. Jenkins, 34 Md., 1, relied on by the appellant, where the right involved was a claim to light and air, cannot be taken as an authority in this case. In that case, the principle just cited from Gale on Easements, 81, was given full application; but, as we have said, the authorities do not warrant the extension of that principle to the case of a claim of an ordinary way like the present.
It is true, as contended by the appellant, that where one party deeds to another a parcel of land surrounded by other lands, and there is no access to the land thus conveyed, except over the lands of the grantor, the latter gives the grantee a right of way by implication, over his own land to that conveyed by him. But this way of necessity, is a way of new creation by operation of law, and is only provisional; for it is only brought into existence from the necessities of the estate granted, and continues to exist only so long as there may be a necessity for its use. If, therefore, the grantee acquires a new way to the estate previously reached by the way of necessity, the way of necessity is thereby extinguished. Pomfret vs. Ricroft, 1
Whether the appellant’s claim to the right of way through the land of the appellee can be supported as alleged, either as a way of necessity, or as a way acquired by prescription or user, as he contends it may, conceding all other obstacles to be removed, depends upon the right or interest to which he has shown himself entitled in that portion of the way that leads through the private road over the lands of Joshua E. Cockey to intersect the public highway. The termini of the way are material to be proved as alleged; and if the proof stops short of either it is fatal to the right claimed. Wright vs. Rattray, 1 East, 377; 2 Greenl. Ev., sec. 659. If, therefore, the appellant has no such interest in the private road through Cockey’s. land to the public highway as to maintain his right of passage thereover, to which he alleges himself entitled, he bas failed to present a case upon which he can recover in this action. To meet this difficulty in the case, it is contended on the part of the appellant, that he is entitled to an easement in this particular way over the land of Cockey, acquired by long and continuous user by himself and those preceding him in the ownership and occupancy of
We find no error in tbe ruling of the Court, and therefore affirm the judgment.
Judgment affirmed.