34 N.Y.S. 840 | N.Y. Sup. Ct. | 1895
This action was brought to establish the existence and determine the extent and character of a private road, across defendant’s premises, leading from one portion of plaintiff’s farm to ¡another portion, entirely disconnected. The premises of both ¡parties were on the 1st of April, 1869, owned by and in possession of Daniel H. Huntington, and consisted of a farm of something over 100 acres, including a wood lot of about 20 acres. On the date named, Huntington conveyed to William L. and Mathew P. Skellinger the premises now owned by defendant, being 35 acres, including the north half of the wood lot. This 35 acres was so situated as to cut off the south half of the wood lot from the remaining portion- of the farm. In this deed was the following clause: “Reserving the right of way over the east lot to and from the wood lot at all times when said lot is not sown with grain, and at all times when there is sleighing.” Huntington, on the same day, conveyed the balance of the farm, including the south half of the wood lot, to the plaintiff. In the deed to plaintiff, the whole farm and wood lot were described, and then there was excepted there
Very clearly, the court did not err in holding that the plaintiff was entitled to the benefit of the reservation in the .deed to the Skellingers, although it was not expressly mentioned in the deed to him. Washb. Easem. (4th Ed.) 40. That was clearly the intention of the parties, and both deeds are to be construed together. Hills v. Miller, 3 Paige, 254. Although the language of the reservation was somewhat indefinite, there was a practical location that binds the parties. Onthank v. Railroad Co., 71 N. Y. 194, 198. The surrounding circumstances and the use before and after the deeds leave no doubt on the subject.
The court held that the plaintiff, as the owner of the dominant tenement, has the right to enter upon the roadway for the purpose
The defendant claims that the court improperly construed the reservation. Several findings of law on the subject are excepted to, the most important of which, and the only one that need be particularly discussed, is the sixth, which is as follows:
“That the true construction and meaning of the words of said reservation are that the plaintiff has the right to pass and repass upon said roadway between the wood lot over the east lot to the barway at the head of the said lane, with teams, and to transport wood, stone, and the products obtained from said wood lot, at all times when the intervening land is not in good faith so-sown with grain that the use thereof for a roadway would result in substantial injury to the owner of the fee, and at all times when there is sleighing, whether or not said east lot is sown with grain.”
It apparently was contended by the defendant at the trial that, whenever he sowed to grain any part of the east lot that included any part of the road, he could entirely close the road until the crop was off. The plaintiff' claimed that by reason of his long user of the road at all times without let or hindrance, although on some occasions the land was sown to grain, he had a right to pass over the route, although the Tot was sown to grain. A construction was sought .of the reservation, on the one hand, that would put it in'the power of the owner of the lot at his will, by the use for grain of an insignificant part of the lot, to block the use of the entire road; and evidence was given tending to show that the sowing in 1892 was not in good faith, but for the purpose of stopping the drawing of stone by plaintiff from his quarry on the wood lot. On the other hand, a construction was sought that might, in effect, do away with the evident design of the reservation to give protection to the owner when the lot was used in a particular way. At the time of the deed, the “east lot” was a definite inclosure. The road was entirely on it, and there was no fence that crossed it. The
It is further claimed by the defendant that costs should not have been given against him. They were given upon the ground that the action of the defendant made litigation necessary in order to protect the rights of the plaintiff. Upon the trial, as appears from the record, the defendant claimed that the plaintiff had no right of way at all. It also appeared that defendant claimed that the plaintiff had no right to draw stone over the road. He claimed the right to plow it up whenever he sowed with grain. The costs were in the discretion of the court. The character of the litigation was within the particular observation of the trial court. We find no sufficient ground for saying that the discretion of the court on the subject was improperly exercised.
Judgment affirmed, with costs. All concur.