Walker v. Pierce, 38 Vt. 94

Walker v. Pierce

38 Vt. 94 | Vt. | 1865

The opinion of the court was delivered by

Reck, J.

The deed from the defendant to the orator, conveying the easterly portion of the building, grants to the orator '■'■the right” to use the common passway uat the west end of the building, also a right to a passiuay therefrom to the rear of the portion of the building hereby conveyed, to be forever so fenced and provided with a gateway as to give said Walker, his heirs and assigns, room to pass of the width of a common cartway for all necessary and ordinary household purposes,i to the rear of the building herein conveyed.” This is the language of the grant. The common passway, mentioned in the grant, passes from the street down to the rear of the building; and the other passway granted passes from the common passway along in rear of the defendant’s part of the building to the rear of the orator’s portion of the building. The two passways, if-they can be so called, are nearly at right angles with each other at the point of intersection. It might with more propriety be said to be one entire passway, turning its course near the middle of it, at an angle or sharp curve, about ninety degrees.

The principal question in dispute upon the pleadings and evidence is whether the defendant in the.erection of his shed, has left between the rear of his part of the building ind his shed, a passway of the width he was bound to ieave by the terms of his deed, at the angle or curve.

The defendant claims that the proof shows that an ordinary cart-way is of the width of only twelve feet, and that ^ ,'ith this proof, the legal construction of the deed is that the plaintiff is entitled to a way but twelve feet in width ; that in connection with this proof the grant is the same as if the deed had specified twelve feet as the width of the way. We cannot adopt this construction of the deed. In the construction of a deed or grant, the language is to be construed in connection with, and in reference to, the nature and condi*98tion of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view. The object expressed in this deed is, uto give said Walker, Ms heirs and assigns, room lo pass of the width of a common cartway for all necessary and ordinary household purposes.” To effect this object the way must be of such a width as to be available to the grantee, and capable of practical use. What would be sufficient for a common cart-way on a straight line, might not be in case of a way with sharp angles and curves, as more space would be required in turning the angles and curves, than in passing on a straight line. It appears that the common passway from the street down between the defendant’s portion of the house and Anderson’s house, is but ten feet wide ; consequently the orator must make the turn mainly upon the defendant’s land in going from that passway to the rear of his building, and is entitled by the grant to space reasonably convenient for that purpose.

It becomes then a question of fact whether the orator has such convenient space left open and unobstructed for that purpose. Without going into the particulars of the evidence, we think upon the proof in the case he has. We think the difficulty and embarrassment in passing, disclosed in the evidence, arises from the steep descent in going down the common or Anderson passway, just at the angle where the two ways intersect, rather than from the want of sufficient space. With that common way properly graded down as the master recommends in his report, the orator will have all the space for passage which in our judgment, in view of the condition of the property at the date of the deed, he is entitled to by his grant, and all that was in contemplation of the parties at the time. As to the abutment, it appears by the master’s report to have been removed, and no mention is made of it in the decree.

The only remaining question is, whose duty it is to grade down that way. When a party grants a private way, he is not bound by implication to construct or keep in repair the way granted. That duty rests on the grantee if he wishes to enjoy the way, and he takes by the grant the right to do so. But it appears in this case that the defendant has filled up and raised this common way from the street to the rear of his building since the date of his deed to the orator, *99'thereby causing, to some extent, the abrupt descent which embarrasses the orator in approaching the rear of his house through the way in question. As it does not appear affirmatively that the master’s report and decree of the court of chancery require the defendant to grade down that way more than he has raised it since the execution of his deed to the orator, we find no error in this part of the decree. The defendant objects to this portion of the decree on the ground that Anderson owns this common way in common with the parties to this suit, and that the defendant by complying with the decree will trespass upon Anderson. But it is right, as between the orator and the defendant, that the latter should undo what, to the prejudice of the orator, he has improperly done ; and the defendant has a right, as between him and Anderson, to make necessary and proper repairs. Under these circumstances this decree may properly be made against the defendant without making Anderson a party. The view we take of the case destroys the main basis on which the master awards damage to the orator. Uo substantial damage worth the cost of estimating has been sustaiüed, and none is allowed.

The decree of the court of chancery is reversed, and the cause remanded with directions to that court to enter a decree for the orator only requiring the defendant to grade the common passway as required by the original decree, and as the orator fails in the main portion of his bill, neither party should recover costs.