118 Va. 720 | Va. | 1916
delivered the opinion of the court.
This appeal is from a decree dismissing the hill in a suit by appellant to establish a private right of way from his farm
Formerly these two farms, together with the Pratt tract and several smaller parcels of land, belonged to Richard Turner and constituted one estate called “Waltsingham.” Waltsingham was bounded on the north by a public road, on the east by the “Oakenbrough” estate, on the south by Rappahannock river, and on the west by the public road leading from Port Conway in a northerly direction to the public road mentioned above. Richard Turner died in 1829, having devised the eastern half of “Waltsingham” to his son, Richard Henry Turner, and the western half to his son, Albert Turner. The will directed the dividing line between these properties to be run from the river on the south to the public road on the north. Title to the western moiety, “Waltsingham,” by successive devises and conveyances, devolved upon appellees. Richard Henry Turner, grandfather of appellant, in the year 1893, cut off from the easterly moiety 200 acres on the north, and by deeds of even date conveyed that boundary, the “Pratt” tract, to his daughter, Mrs. Eliza H. Pratt, and the residue, of “Woodlawn,” to his son, Henry Vivian Turner, father of appellant, who afterwards devised “Woodlawn” to his wife and appellant, who subsequently inherited his mother’s portion.
Appellant claims a right of way from necessity and by prescription over the road in controversy, which claims are not altogether consistent, since the right to the former must have attached, if at all, at the time of the partition of “Waltsingham,” while the latter imports acquisition of the easement by exclusive, uninterrupted, continuous and adverse use and enjoyment for twenty ■ years with the knowledge and acquiescence of the owner. Gaines v. Merriman, 95 Va. 660, 666, 29 S. E. 738; Reid v. Garnett, 101 Va. 47, 48, 43 S. E. 182; Williams v. Green, 111 Va. 205, 68 S. E. 253; Kent v. Dobyns, 112 Va. 586, 72 S. E. 139; Witt v. Creasey, 117 Va. 872, 86 S. E. 128.
The doctrine of ways by necessity is succinctly stated in 1 Minor on Real Property, section 103, as follows: “Erom principle, it would seem that if there already be another mode of access to the land, though much less convenient, or more expensive to develop, the reason for the inference of a grant of a way by necessity ceases.”
At the date of the partition of “Waltsingham,” Richard Henry Turner was the absolute owner of “Woodlawn” and the land to the north of it abutting on the public road, across which the private road extended. So, at that time no reason existed for a way by necessity over “Waltsingham.” And the record does not show that Richard Henry Turner’s successors in title, including appellant, have in any manner lost or been deprived of that outlet. Muse v. Gish, 114 Va. 90, 75 S. E. 764.
Of appellant’s second contention, namely, that he has a right of way by prescription, the burden of proof rests upon him to establish it. Witt v. Creasey, supra. That he has
Affirmed.