delivered the opinion of the Court. The plaintiff claims a right of way over the defendant’s land, either by operation of law, as a way of necessity, or by express reservation in the levy of Daniel and Charles Jackson’s execution from whom the defendant derives title.
This construction might possibly be deemed a reasonable one, if the judgment debtor’s lands, after the levy of this execution, had remained contiguous, so as to have constituted one lot, the way reserved being equally necessary or convenient to the whole. But it appears that by the levy of this execution, and by a previous levy by one Samuel Robbins, the debtor’s land northerly of the defendant’s lot was ■ separated from his land to the westerly, and thus was formed into two distinct lots. From the northerly lot there was no access to the street except by the way reserved ; while the westerly lot extended down to the street; and to this lot the debtor had a convenient and unobstructed access without the aid of the way reserved. Considering these facts, we cannot misconstrue the terms of the reservation. It is impossible to understand them as referring to the westerly lot. From this lot the debtor had an outlet over his own land equally convenient with the way in question, so far as we know ; and probably more so ; because it appears that on this part of the lot, and not on the part taken by the Jacksons, was placed the gate way for carriages, used as an avenue to the barn and land m the rear. We consider therefore the right of way reserved o the debtor, as appurtenant to his northerly close ; and it is
It follows, therefore, that if the plaintiff has a right of way over any part of the defendant’s land, it is over the slip of land by him purchased of Warren, the front part of which he purchased of Cooper. After the levy of the Jacksons’ execution, Mrs. Cooper extended her execution on the whole remaining front part of the debtor’s lot; and his access from the back land of his westerly close to the street was then cut off. A right of way, therefore, was derived to him by operation of law over the land taken by Mrs. Cooper. But the judgment debtor had no right to an arbitrary location of his right of way, without regarding the interest and convenience of the owner of the land. On the contrary, I am of opinion that the right of location was rather vested in Mrs. Cooper. For if one has a right of way over the land of another, which he claims by operation of law, he is bound to use it so as to occasion the least possible injury or inconvenience to the owner of the land. All that a person entitled to such an ease-: ment can reasonably claim, is a convenient way ; and if this is allowed by the owner of the land, he has no cause to complain.
A right of way by necessity never can be claimed, where a man can get to his property through his own land, however inconvenient the way through his own land may be. M'Donald v. Lindall, 3 Rawle, 492 ; Holmes v. Goring, 2 Bingh. 76 ; S. C, 9 Moore, 166.
See 2 Rollers Abr. 60, Z,pl. 17 ; Farnum v. Platt, 8 Pick. 342 ; Oldfield's case, Noy, 123 ; Horn v. Taylor, Noy, 128 ; Staple v. Heydon, 6 Mod. 3 ; Morris v. Edgington, 3 Taunt. 31.
