Woodworth v. Raymond

51 Conn. 70 | Conn. | 1883

Loomis, J.

The complaint is for obstructing a private way Avhich the plaintiff claims to own, founded upon custom, prescription and necessity. The court negatived the claim as to custom and prescription, but found the plaintiff entitled to a way by necessity, and rendered judgment in his favor.

It seems to us the facts found do not furnish the necessary legal elements to constitute a way of necessity. Such a way is not created by a mere necessity, but always originates in some grant or change of ownership, to which it is attached by construction as a necessary incident presumed to have been intended by the parties. The name is significant, not only for the reason just suggested, but because the way must be founded on an actual necessity, and ceases to exist when the foundation fails.

If A conveys land to B to which B can have access only by passing over the other land of A, a way of necessity passes to B by the grant; and if A conveys land to B, leaving the remaining land of A inaccessible unless by passing over the land so granted, a way of necessity is reserved to A in the grant. It follows therefore from the principles before stated that a way of necessity cannot legally exist where neither the party claiming the way, nor the owner of the land over which it is claimed, nor any one under whom they or either of them claim, was ever seized of both tracts of land at the same time, and the way can only be created when one of the tracts is conveyed or the ownership changed by operation of law.

The legal principles we have summarised will be found supported by numerous authorities in addition to those cited in the brief for the defendant. Tracy v. Atherton, 35 Verm., 52; Stewart v. Hartman, 46 Ind., 331; Proctor v. Hodgson, 29 Eng. L. & Eq., 453; Pearson v. Spencer, 1 Ellis (B. & S.), 571; Gayetty v. Bethune, 14 Mass., 55; Nichols v. Luce, 24 Pick., 102; Brigham v. Smith, 4 Gray, 297; 6 Wait’s Actions & Defences, 355, 356; 1 Wms. Saunders, 570, note 6.

Now if we apply the law to the facts of the ease under consideration we find one fundamental requisite for the creation of a way of necessity wanting, namely, a common ownership of the plaintiff’s land and the defendant’s land at a time when either was conveyed. The earliest conveyance of the plaintiff’s lot which the record discloses was on July 23d, 1835, when Ralph Hurlbutt, Lydia Wyyongs, Parthenia Hoscott, and Cynthia Hoscott, then the sole owners, conveyed it to Joshua E. Woodworth, the plaintiff’s father, and under whom he derived title, and at that time it is found they were not the owners of any adjoining lots across which access could be had to the highway.

Similar difficulties exist in regard to previous conveyances of the defendant’s land. This consists of a small lot immediately south of the plaintiff’s, called the “ Ashbow lot,” and a large tract adjoining on the east and south of that, called the “Fort Hill farm,” through both of which the way in question is claimed. The title to the former came to the defendant June 20th, 1875, by deed from one C. G. Symonds, who had no interest in the plaintiff’s lot. The Fort Hill farm was conveyed to the defendant July 27th, 1874, through commissioners appointed for the purpose, from the Mohegan tribe of Indians, who owned neither the plaintiff’s lot nor the Ashbow lot.

If it should be suggested that there must have been one common ownership of all these lands after they had been sequestered by the state for the use of the Mohegan tribe of Indians, we reply that a way of necessity cannot be predicated on such a fact without also showing-the particulars as to the early grants — from whom and to whom made and where located; much less can it be assumed that there was any way identical with this. The tract of land called the Mohegan reservation it is said extended four miles along the river Thames and eight miles back from the river. If we could presume that there must have been some grants under circumstances implying a way of necessity, yet its location, depending upon convenience, it would be impossible to imagine, and whether its route to the nearest highway would be north, south, east or west, no one could tell. Brice v. Randall, 7 Gill & Johnson, 349.

It is not found how the grantors of the lot conveyed to the plaintiff’s father derived their title. It appears only that they were members of the Mohegan tribe of Indians, and that the lot conveyed by them and several lots lying north of it had belonged in severahy to certain members of the tribe from time immemorial. The fact that these grantors were members of the Mohegan tribe, and as such joint tenants with all the other members in the Fort Hill farm, did not enable them to create a way of necessity over that farm as incident to the grant of their own land. What they could not do directly by express grant they could not do indirectly by an implied grant. Collins v. Prentice, 15 Conn., 423; Marshall v. Trumbull, 28 id., 183; Adam v. Briggs Iron Co., 7 Cush., 368; Watkins v. Peck., 13 N. Hamp., 360 ; Portmore v. Bunn, 3 Dowl. & R., 145 ; Washburn on Easements (2d ed.), 37, 222.

Our conclusion, that the court erred in holding that the plaintiff had a right of way of necessity, removes the sole foundation on which the court based its judgment, and Avould naturally end the discussion. The plaintiff however claims the benefit of the principle that if it appears from the record that the judgment was right, though the .ground on which it was placed was wrong, it will not be disturbed. The principle is as stated, but does the record furnish good ground for its application? The plaintiff claims that the facts found show a good title by prescription. The duration of the occupancy would be sufficient, but as the foundation of a prescriptive title is the presumed grant from the party whose rights are adversely affe'cted, it can only be claimed under and through some one Avho had a right to grant it. Chalker v. Dickinson, 1 Conn., 382; Rochdale Canal Co. v. Radcliffe, 18 Queen’s Bench, 287; Washburn on Easements, (2d ed.), 112. The Indians had no such right, but their lands were under the special protection of the law. Revision of 1866, p. 523, sects. 4 & 6." Section 4 provides that “all conveyances of any land by any Indian belonging to or which have belonged to the estate of such tribe, whether by deed or otherwise, shall be void.”

As the view we have taken disposes of the case upon its merits, it becomes unnecessary to consider the question of estoppel arising from the conduct of the plaintiff at the time the defendant purchased the Fort Hill farm.

There was error in the judgment complained of, and a new trial is ordered.

In this opinion the other judges concurred.