68 N.J.L. 474 | N.J. | 1902
Tbe opinion of tbe court was delivered by
By deed dated September 26th, 1853, tbe executors of tbe estate of Ephraim Harriott, deceased, conveyed to Alfred Hall, Edward J. Hall and Eber Hall, in fee, a tract of land containing twenty-one and a half acres. On tbe 15th day of July, 1854, Robert Coddington, as party of
The Halls, by deed dated February 18th, 1880, conveyed the twenty-one and a half acres to the plaintiff, and by deed dated February 18th, 1883, conveyed to it the right of way. The title to the Coddington tract had become vested in the defendant in April, 1899.
The action was brought to determine the right of the plaintiff to use this private'way, which had been obstructed by the defendant. The case was tried by the judge, without a jury, and judgment given for the plaintiff.
It appears from the evidence that in 1866 the Halls had purchased a piece of land lying between the twenty-one and a half acre tract and a public highway other than that to which the right of way granted led, and that for some years-prior to that purchase, and afterwards, they and the plaintiff had obtained ingress to and egress from the twenty-one and a half acre tract across these lands, and the defendant claims that, another means of access to the twenty-one and a half acre tract existing, there no longer remains any necessity for the right of way which had been granted, and that it ceased by reason of the clause in the agreement “that when the road is no longer required by the said parties of the second part, their heirs and assigns, then the said road to revert to the said Robert Coddington, his heirs and assigns, the same as if this agreement had never been made.”
The first assignment of error is that the court below decided “that the right of way mentioned in the declaration, granted by Robert Coddington over his lands, was not one of necessity, under the terms of the grant, and did not terminate when the grantees of said right of way acquired other lands adjoining a public highway and also adjoining the lands on which their clay-banks were located.” In this we think there
The right of way from the Halls’ clay-bank to the old stage road leading from Woodbridge to Piscataway over the Coddington land was granted to the Halls, their heirs and assigns, for the purpose of carting clay, &c., and under this agreement, so long as they desire to use this private way to reach the old stage road for the purpose of carting clay, &c., as specified in the agreement, they have a right to- do so, and are not in any way limited in that right because they have acquired another way of carting clay from their clay-banks to some other road. The language used in the agreement “that when the road is no longer required by the said parties of the second part, their heirs and assigns, then the said road to revert,” &c., did create a way from necessity, and can only mean that when the Halls and their assigns cease to take clay from these clay-banks and no longer use the private road to cart clay from the clay-banks to the old stage road, and by some act or acts on their part and so intended by them, relinquish the right to use this road, then it is to revert.
The mere non-user of the way by the grantees, no matter how long continued, unless that non-user arose from the adverse possession of the way by the owners of the Coddington land for a period of twenty years, would not extinguish the right granted. The way was there for the Halls and their assigns to use, under the agreement, as they saw fit, at longer or shorter intervals.
This was a grant by Coddington of an interest in his lands to the Halls, their heirs and assigns, which might continue so long as the clay-bank continued to supply clay, which the owners of banks might desire to cart over this way to the old stage road, and it being granted to- the Halls and their assigns it could be by them granted.
This language indicates that the whole twenty-one and a half acres were included in the expression, “said clay-banks,” and there is nothing in tbe agreement by which tbe right granted is limited to those clay-pits which were opened and used at the time of the execution of the grant.
We find no error in the ruling of the judge at the trial, and the judgment should be affirmed.