38 Vt. 94 | Vt. | 1865
The opinion of the court was delivered by
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
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,
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.