82 Wis. 390 | Wis. | 1892
The right of way reserved by the defendant’s grantor, and afterwards conveyed by him to the plaintiff with the lands to which it was appurtenant, created a mere easement. The language of the deed reserving it is “ a reasonable right of way,” and the common grantor of both parties conveyed it subsequently with the lands to which it was appurtenant as “ the right of way across P. Quinlan’s land.” The plaintiff thus became the owner of the dominant estate for the benefit of which the easement existed, and the defendant’s was the servient estate, burdened with the easement in question.
It is argued that because the right granted is “ a reasonable right of way,” and it is necessary to as full and perfect enjoyment of .it as is desirable, that therefore the plaintiff, for his greater convenience and safety in its use, has a right to fence it in; but we do not think the language in question warrants any such conclusion. The lateral boundaries and width of the way are not specified. The word reasonable obviously has reference to the width and limits of the way to be enjoyed, but still it is a mere right of way, a mere easement, and no more, and, though a burden,
The owner of the soil of a way, whether public or private, may make any and all uses of it to which the land can be applied, and take all profits which can be derived from it consistently with the enjoyment of the easement. Washb. Easem. p. -264 et seq. All rights which are consistent with the reasonable exercise of the easement remain with the grantor, because they are not granted. In this case the lands were conveyed by the common grantor to the. defendant, and the mere easement was reserved and conveyed to the plaintiff. He is entitled only to a reasonable and usual enjoyment and use of the easement. Bakeman v. Talbot, 31 N. Y. 366, 371; Baker v. Frick, 45 Md. 337. In Brill v. Brill, 108 N. Y. 511, 517, similar views are expressed, and it is there laid down that “ the owner of the soil has all the rights and benefits of ownership con
Testimony was given to show that the defendant consented to the erection of the fence, but this was no more than a parol license, which was revocable, and was in fact revoked by the acts and conduct of the defendant.
The judgment of the circuit court is correct.and must be. affirmed.
By the Court.— The judgment of the circuit court is affirmed.