Gill v. Trout

1 Tapp. Rep. 293

• Court: Belmont County Court of Common Pleas
• Decided: November 15, 1818
• Status: Published

Opinion

President.

If possession is sufficient prima facie evidence of the plaintiff’s right to maintain this actiou, it is because possession is presumptive evidence of property, but it is not conclusive evidence > and where a plaintiff goes further, and proves that his possession is wrongful, he effectually does away every presumption of property; he brings then in question his right to maintain the action, and can no longer rest on his ostensible title ; such is the case here: so that, in deciding whether the evidence given by the plaintiff is sufficient to sustain his action, we must decide whether a man having possession of land, without any right to such possession, can claim a right of way over the other lands of the owner of the soil he possesses, as incident to such possession ; for the land in possession of the plaintiff, and the whole of the way he claims from it, are on the section owned by Foulks. It struck me, on the trial, that this claim could not be sustained; and I am now satisfied that such impression was correct. There are two objections to the plaintiff’s right of recovery, either of which is fatal to his claim: 1st. this way is not necessary for him: the road which was formerly used from his field, to the highway, may now be and sometimes is used; it is not so convenient as the way in question, but convenience is not necessity; and it is a good answer to the claim here set up, that the plaintiff has another way, 2d Mass. Rep. 203, 1st. Com. Dig. 285 — 2d, the plaintiff has no right to which this way can be incident. A way of necessity may be claimed, where a man grants to another land which is encompassed by the grantor’s other land; the grantee has a right of way as incident to the land granted; for where the use of a thing is granted, every thing is granted by which the grantee may enjoy such use; a way of necessity, is then a way by grant, it can have no other origin — 1 Saund, 323, n, 6, 2d Com. Dig. 57, 58. It is not necessary to decide the question, whether possession alone would be sufficient to support this action; for, in this case, it does not stand alone, but is explained to be without right: but if the foundation of the claim be a grant, as I think evident, then there is the same necessity of setting out the title as though the grant were express of the way claimed. Judgment of nonsuit.