Schmidt v. Quinn

136 Mass. 575

• Court: Massachusetts Supreme Judicial Court
• Decided: February 29, 1884
• Status: Published

Opinion

Field, J.

There was evidence'for the jury that the plaintiff had, as appurtenant to his lot, a right of way by necessity over the defendant’s lot. If the title to the plaintiff’s lot had been acquired by grant from the owner of the two lots, this would be evident; for when land is conveyed which is inaccessible without trespass, except by passing over the land of the grantor, a right of way by necessity is presumed to be granted ; otherwise, the grant would be practically useless. Indeed, it has been held that all that is required is that a way over the grantor’s land be reasonably necessary for the enjoyment of the granted premises. Grayetty v. Bethune, 14 Mass. 49. Nichols v. Luce, 24 Pick. 102. Viall v. Carpenter, 14 Gray, 126. Leonard v. Leonard, 2 Allen, 543. Pettingill v. Porter, 8 Allen, 1. Oliver v. Pitman, 98 Mass. 46.

We see no reason why the rule of law should not be the same when the grant is involuntary, as by the levy of an execution, even although a right of way might have been expressly included in the levy, but was not. This has been held when a right of way by necessity is reserved to the debtor over a part of his land taken on execution. Pernam v. Wead, 2 Mass. 203. Russell v. Jackson, 2 Pick. 574. Taylor v. Townsend, 8 Mass. 411. Brigham v. Smith, 4 Gray, 297. A right of way by necessity can only be presumed when the necessity existed at the time of the grant; and it continues only so long as the necessity continues, and it is only a right to a convenient way.

There was evidence for the jury that, at the time the plaintiff’s lot was set off on execution, and ever since, there had been no way to it which the owner of that lot could lawfully use, except over the defendant’s lot.

Whether this way has been so located and assigned that it cai.not be changed except by consent of both parties, or whether the owner of the servient estate has still the right to assign some other practicable way than the one heretofore used, need not be decided. The obstruction complained of is to the way as it has been heretofore used; and it does not appear that there is any other practicable way, or that the defendant has assigned or offered to assign any other way. See Smith v. Lee, 14 Gray, 473; Bass v. Edwards, 126 Mass. 445.

Exceptions sustained.