Allen v. Kincaid

11 Me. 155

• Court: Supreme Judicial Court of Maine
• Decided: April 15, 1834
• Status: Published

Opinion

Weston J.

The front land lying upon the road, being taken by the creditor, leaving the rear to the debtor, the latter was entitled to access thereto, and if none was reserved, he was entitled to a way of necessity. What the distance was the case does not find. * It appears that the way reserved was not passable with carts and carriages, without incurring an expense of from twenty-five to three hundred dollars. It rarely happens that an un-wrought road is convenient or suitable for carriages. To make it so, requires labor and expense. This is a charge, which does not fall upon the creditor. The defendant, in common with other citizens, could doubtless have the aid of the town in making the way, upon proper application. The way reserved might be so inconvenient or impracticable, as to be evidence of fraud upon the debtor’s rights. No sufficient ground is afforded us, to justify such a conclusion. The defendant is not shut out from his land, and for any thing appearing in the case, a road may be made, over the reserved land, at a reasonable expense. ' The fee of the whole land levied on, passed to the creditor, whose title the plaintiff has, unless the defendant has therein a way of necessity. We cannot regard the facts agreed as affording sufficient evidence of such a right.

Judgment for the plaintiff.