Whitehead, J.
Gen. John A. Schuyler was in his life-time and at the time of his death seised and possessed of the two tracts of land now owned by these parties adjoining the Passaic river in the county of Hudson. He died intestate in 1817 leaving heirs-at-law to whom the premises descended. After his death the whole tract remained in the possession of his widow and children until the 17th day of March 1821, when Commissioners appointed for the purpose by an act of the legislature of .this state, sold and conveyed the mansion house and grounds attached, to one Daniel Fox, who entered upon and continued in possession until the 22d April 1839, when he sold and conveyed the premises to the plaintiff Stuyvesant. Immediately after the Commissioners’ sale to Fox the widow and children of General Schuyler removed to the adjoining premises then known as the Cottage, now owned by the defendant Woodruff. Her children conveyed the same to her by deed dated 15th July 1826. She continued in possession until October 1831 when she conveyed to one Tregaskis, who conveyed to the defendant by deed dated 25th August 1840.
There is no discrepancy in the evidence as to the actual line of partition between the parties. The entrance' on the south side of the plaintiff’s premises is through a gate upon this division line. The defendant owns a strip or gore, of open unenclosed land lying between the plaintiff’s fence and gate and the travelled part of the public road, so that the plaintiff immediately upon passing through this gate entered upon the defendant’s freehold and crossed it in going to the public road. In November 1840 the defendant erected the fence complained of upon this gore of land which obstructed the plaintiff in his passage through this entrance to and from the public and common high[151]*151way. A question was made upon the trial of the cause whether this gore of land was the defendant’s own private property, or the public highway. It was left as a question of fact for the consideration of the jury under the evidence in the cause, and to the ruling of the judge upon this part of the case no exception was taken.
The plaintiff’s premises are bounded on two sides by public highways. The case also shows that the obstruction complained of was put up about nineteen years and eight months after the date of the Commissioners’ deed to Mr. Fox.
The judge in his charge to the jury laid down the three following propositions as the law of the case, to which the plaintiff’s counsel excepted, and upon which errors have been assigned :
First — That the right of passing out of the premises of the plaintiff to the public road, and returning again in the same place, did not pass to Mr. Fox by the deed of the Commissioners, as an appurtenant to the land or otherwise.
Second' — -That the way claimed by the plaintiff is not a way of necessity, and
Third — That the plaintiff could not claim the right of way, or of passing out of and into the gate way in question, unless it appeared by the evidence that the plaintiff and those under whom he claimed, had been in the uninterrupted possession of the same for twenty years or more, after the Commissioners’ conveyance to Mr. Fox. Other errors were assigned by the plaintiff, but they are unimportant in their character and are virtually embraced in those I have stated.
The evidence in the cause shows conclusively that the gate in question, or an entrance at the place where it now is, together with the carriage way leading from it to the mansion house on the plaintiff’s premises, had been used by the plaintiff, and those under whom he holds for more than fifty years. Up to the time however of the conveyance to Mr. Fox there could be no right of way as an easement over the close in question by Gen. Schuyler or his heirs, for the reason that until then there had been no severance of the property. A person cannot have a right of way as an easement in the legal sense of the word over his own land. 1 East 381.
[152]*152The Commissioners conveyed the. premises to Mr. Fox by metes and bounds, with the privileges, appurtenances &c. without reference to any right of way or easement. Giving to the deed the same effect as if it had been executed by Gen. Schuyler in his life-time, or by his heirs after his death, and assuming that this is not a way of necessity, I do not see upon what principle it can be said to pass by the deed. It did not pass under the word appurtenances, for the operation of this word in conveyances is uniformly confined to an- existing right and is not understood as creating a new one. 3 Bos. & Pull. 371. So far as respects the right claimed by the plaintiff in this case there was nothing for the word appurtenances to operate upon. The general rule to be gathered from the books is this, — that ordinary rights of way do not pass upon a severauce of the possession unless the grantor uses language in the conveyance showing that he intended to create the easement de novo. He holds the remaining part of the premises discharged from all easements except such as arise from the necessity of the case. See Law of easements by Gale & Whateley, p. 48. Grant v. Chase and al. 17 Mass. Rep. 443.
It was insisted by the counsel of the plaintiff that as the gate and carriage way had been used by Gen. Schuyler and his heirs during the unity, and were palpable and manifest at the time of the conveyance to Mr. .Fox, and constituted an inducement to the purchase, a grant of the easement might be implied. In support of this doctrine we were referred to Gale & Whateley, p.40 where it is said : — “Strictly speaking a man cannot subject one part of his property to another by an easement, for no man can have an easement in his own property, but he obtains the same object by the exercise of another right, the general right of property; but he has not the less thereby permanently altei’ed the quality of the two parts' of his heritage; and if after the annexation of peculiar qualities, he alien one part of his heritage, it seems but reasonable, if the alterations thus made are palpable and manifest, that a purchaser should take the lands burthened or benefitted, as the case may be, by the qualities which the previous owner had undoubtedly the right to attach to it.”
It is uncertain from this passage what the authors mean by the peculiar qualities or alterations with which a purchaser should [153]*153take the lands burthened or benefitted, but from other parts of tiie work it is manifest they mean such alterations as are permanent in their character, or which are evidently necessary. In this view they are supported by the eases to which they refer. The artificial conduit running to the granted premises. (Cro. Jug. 121,) passed, not because it was a palpable and manifest alteration made before a part of the heritage was aliened, bnt because it was necessary and quasi appendant. The ease of lights also in a house or other building comes within the same rule when the windows open upon other land of the grantor of the house. 17 Mass Rep. 443; 12 Mass. Rep. 157. But I can find no case in which it has been decided that the grantee of a part of a tract of land has a right of way over the remaining lands of the grantor merely because the grantor before severance was accustomed to pass over the granted premises to the public highway. If the parties to the Commissioners’ deed intended that Mr.
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Whitehead, J.
Gen. John A. Schuyler was in his life-time and at the time of his death seised and possessed of the two tracts of land now owned by these parties adjoining the Passaic river in the county of Hudson. He died intestate in 1817 leaving heirs-at-law to whom the premises descended. After his death the whole tract remained in the possession of his widow and children until the 17th day of March 1821, when Commissioners appointed for the purpose by an act of the legislature of .this state, sold and conveyed the mansion house and grounds attached, to one Daniel Fox, who entered upon and continued in possession until the 22d April 1839, when he sold and conveyed the premises to the plaintiff Stuyvesant. Immediately after the Commissioners’ sale to Fox the widow and children of General Schuyler removed to the adjoining premises then known as the Cottage, now owned by the defendant Woodruff. Her children conveyed the same to her by deed dated 15th July 1826. She continued in possession until October 1831 when she conveyed to one Tregaskis, who conveyed to the defendant by deed dated 25th August 1840.
There is no discrepancy in the evidence as to the actual line of partition between the parties. The entrance' on the south side of the plaintiff’s premises is through a gate upon this division line. The defendant owns a strip or gore, of open unenclosed land lying between the plaintiff’s fence and gate and the travelled part of the public road, so that the plaintiff immediately upon passing through this gate entered upon the defendant’s freehold and crossed it in going to the public road. In November 1840 the defendant erected the fence complained of upon this gore of land which obstructed the plaintiff in his passage through this entrance to and from the public and common high[151]*151way. A question was made upon the trial of the cause whether this gore of land was the defendant’s own private property, or the public highway. It was left as a question of fact for the consideration of the jury under the evidence in the cause, and to the ruling of the judge upon this part of the case no exception was taken.
The plaintiff’s premises are bounded on two sides by public highways. The case also shows that the obstruction complained of was put up about nineteen years and eight months after the date of the Commissioners’ deed to Mr. Fox.
The judge in his charge to the jury laid down the three following propositions as the law of the case, to which the plaintiff’s counsel excepted, and upon which errors have been assigned :
First — That the right of passing out of the premises of the plaintiff to the public road, and returning again in the same place, did not pass to Mr. Fox by the deed of the Commissioners, as an appurtenant to the land or otherwise.
Second' — -That the way claimed by the plaintiff is not a way of necessity, and
Third — That the plaintiff could not claim the right of way, or of passing out of and into the gate way in question, unless it appeared by the evidence that the plaintiff and those under whom he claimed, had been in the uninterrupted possession of the same for twenty years or more, after the Commissioners’ conveyance to Mr. Fox. Other errors were assigned by the plaintiff, but they are unimportant in their character and are virtually embraced in those I have stated.
The evidence in the cause shows conclusively that the gate in question, or an entrance at the place where it now is, together with the carriage way leading from it to the mansion house on the plaintiff’s premises, had been used by the plaintiff, and those under whom he holds for more than fifty years. Up to the time however of the conveyance to Mr. Fox there could be no right of way as an easement over the close in question by Gen. Schuyler or his heirs, for the reason that until then there had been no severance of the property. A person cannot have a right of way as an easement in the legal sense of the word over his own land. 1 East 381.
[152]*152The Commissioners conveyed the. premises to Mr. Fox by metes and bounds, with the privileges, appurtenances &c. without reference to any right of way or easement. Giving to the deed the same effect as if it had been executed by Gen. Schuyler in his life-time, or by his heirs after his death, and assuming that this is not a way of necessity, I do not see upon what principle it can be said to pass by the deed. It did not pass under the word appurtenances, for the operation of this word in conveyances is uniformly confined to an- existing right and is not understood as creating a new one. 3 Bos. & Pull. 371. So far as respects the right claimed by the plaintiff in this case there was nothing for the word appurtenances to operate upon. The general rule to be gathered from the books is this, — that ordinary rights of way do not pass upon a severauce of the possession unless the grantor uses language in the conveyance showing that he intended to create the easement de novo. He holds the remaining part of the premises discharged from all easements except such as arise from the necessity of the case. See Law of easements by Gale & Whateley, p. 48. Grant v. Chase and al. 17 Mass. Rep. 443.
It was insisted by the counsel of the plaintiff that as the gate and carriage way had been used by Gen. Schuyler and his heirs during the unity, and were palpable and manifest at the time of the conveyance to Mr. .Fox, and constituted an inducement to the purchase, a grant of the easement might be implied. In support of this doctrine we were referred to Gale & Whateley, p.40 where it is said : — “Strictly speaking a man cannot subject one part of his property to another by an easement, for no man can have an easement in his own property, but he obtains the same object by the exercise of another right, the general right of property; but he has not the less thereby permanently altei’ed the quality of the two parts' of his heritage; and if after the annexation of peculiar qualities, he alien one part of his heritage, it seems but reasonable, if the alterations thus made are palpable and manifest, that a purchaser should take the lands burthened or benefitted, as the case may be, by the qualities which the previous owner had undoubtedly the right to attach to it.”
It is uncertain from this passage what the authors mean by the peculiar qualities or alterations with which a purchaser should [153]*153take the lands burthened or benefitted, but from other parts of tiie work it is manifest they mean such alterations as are permanent in their character, or which are evidently necessary. In this view they are supported by the eases to which they refer. The artificial conduit running to the granted premises. (Cro. Jug. 121,) passed, not because it was a palpable and manifest alteration made before a part of the heritage was aliened, bnt because it was necessary and quasi appendant. The ease of lights also in a house or other building comes within the same rule when the windows open upon other land of the grantor of the house. 17 Mass Rep. 443; 12 Mass. Rep. 157. But I can find no case in which it has been decided that the grantee of a part of a tract of land has a right of way over the remaining lands of the grantor merely because the grantor before severance was accustomed to pass over the granted premises to the public highway. If the parties to the Commissioners’ deed intended that Mr. Fox should enjoy this right of way, they should have used language creating the easement anew. If it be a way of necessity the law may imply a grant.
Second — Did the judge err in instructing the jury that the way claimed by the plaintiff was not a way of necessity ?
If the plaintiff intended to establish his title to the easement upon the ground of necessity he should have shewn it to be necessary upon the trial. The court and jury could not presume, in the absence of proof that it was necessary to the enjoyment of his property. Now there is not only an entire absence of any evidence of the necessity of this way, but it appears by the bills of exception that on the trial the defendant offered to shew by the cross examination of one of the plaintiff’s witnesses, that Mr. Fox when he purchased, and Mr. Stuyvesant the plaintiff could have reached the highway by a nearer route over their own premises 'by cutting a gate in a different direction, which however was not allowed by the court. Another carriage way and a gate in another part of the premises might have impaired the beauty and symmetry of the place and subjected the party to some expense, but these considerations do not constitute the necessity in the law which would give to him the right of way over his neighbor’s land. Under the circumstances of this case [154]*154the judge was right in charging the jury that this was not a way of necessity.
The Jast matter complained of is, that the judge charged the jury that the plaintiff could not claim the right of way, or of passing out of and into the gateway in question, unless it appeared by the evidence that the plaintiff and those under whom he claimed had been in the uninterrupted possession of the same for twenty years or more after the Commissioners’ deed to Mr. Fox.
I see nothing in the circumstances of this case which takes it out of the operation of the general rule of law which the judge correctly stated. There was nothing in the terms of the grant to Mr. Fox which gave him the semblance of a right of way over the close in question. The right exercised by the Schuyler family before the severance was not of a character to constitute it a necessary appurtenant, and as such to pass with the premises to Mr. Fox. Immediately after the grant to Mr. Fox, the heirs of Gen. Schuyler might lawfully have erected a fence or placed any other obstruction upon this close, then their own property, and thereby prevented a passage over it through the gate. This right could only be barred by an adverse user of the easement by the plaintiff, and Mr. Fox under whom he claims, for the full period of twenty years.