56 N.H. 306 | N.H. | 1876
Lead Opinion
FROM ROCKINGHAM CIRCUIT COURT.
Chancellor KENT (3 Kent's Com. Dig. 422) says, — "The weight of authority is, that the grantor has a right of way to his remaining land, in case of necessity, when he cannot otherwise approach his land. The law presumes a right of way reserved, or, rather, gives a new way, from the necessity of the case, and the new right of way ceases with the necessity for it. This principle of law has been for a long time recognized." He cites Packer v. Wellstead, 2 Sid. 39, Dutton v. Taylor, 2 Lutw. 1487, and Howton v. Frearson, 8 T. R. 50. In this latter case, Lord KENYON cites and recognizes the binding force of Dutton v. Taylor. The same doctrine is recognized by SHAW, C. J., in Bowen v. Conner, 6 Cush. 132.
The doctrine, which appears very reasonable, is also recognized and well settled by the above authorities.
LADD, J., concurred.
Concurrence Opinion
In 1851 George W. Anderson owned lots A and B. In that year he sold lot B to one Dearborn, whose heirs, May 6, 1867, sold to one Hook, who sold to the plaintiff February 8, 1870. January 21, 1857, George W. Anderson sold lot A to the defendant. There was no reservation of a right of way over lot B in favor of lot A; but the defendant had no way of getting off his land except over lot B, as I understand the referee's report. The authorities sustain the position that there was a way of necessity over lot B. See authorities cited in 2 Bouv. Law Dict. 637.
Judgment on the report.