This, then, did not show a prescriptive right. Such a prescription cannot be acquired short of twenty years' continuous, uninterrupted adverse enjoyment. Where the use has been for that length of time, and it has been peaceable, the law presumes a grant; but if it lack in time, in peaceable enjoyment, or is founded on a lease, it will not be good, even if a greater length of time has elapsed. It must be founded in wrong. If one person enters as the tenant of another, and holds under him, a prescription cannot be acquired whilst the tenant thus holds; nor will any portion of the time he thus holds be counted in making out the prescriptive right.
It then follows that, as Ray Whiteside was in under his father, any use he may have made of this way, whilst he so held, was as tenant, and was in nowise adverse. It was a privilege he enjoyed as his father's tenant, at will or otherwise, for the more commodious enjoyment of the farm he was occupying under his father. No portion of the time he thus used this way can be counted, as he did not use it adversely, but subserviently to his father's title. There was, therefore, no prescriptive right shown.
It is, however, urged that the use of this way was, and had been since Ray Whiteside commenced to occupy the farm, appurtenant to it, and, as such, passed to Ray by the conveyance from his father. Had this way been appurtenant to the farm of the appellant, at the time he purchased, then it would have passed by the grant to him. A way held by grant or prescription will, no doubt, pass by a conveyance of the land with which it is used and enjoyed as an appurtenance; but a mere license to use a way, which has not ripened into a right, but may be revoked, is not an appurtenance, and will not so pass to a grantee of the land. Until there was twenty years' adverse enjoyment, Samuel Whiteside, as the owner of both farms, could have revoked the license expressly or impliedly given, and could rightfully have closed the lane before he sold the land over which it ran Hence, this way was not appurtenant to, and did not pass by, the conveyance from the father to his son, Ray Whiteside.
It is also urged that Ray Whiteside, after he purchased, had a way, of necessity, over this land, and that appellant, by purchasing from Ray, acquired the same right, and hence, appellee purchased of Samuel Whiteside subject to this right of way from necessity; that when Samuel Whiteside conveyed to his son, there was an implied grant to him of a way over the grantor's land to the farm granted, that he might have ingress, for its enjoyment; and that we should presume it was intended that the way should be the same that had been used for the purpose for perhaps almost forty years. A way from necessity is said to arise where the owner sells land to another, which is wholly surrounded by the land of the grantor, and the purchaser has the right of way over the grantor's land, to arrive at his own. 3 Kent's Com. 420. This is the rule as generally stated by text-writers, and used in adjudicated cases.
From the evidence in this case, it is manifest that appellant's lands were not so situated. It was not in the midst of, or surrounded by, the land of Samuel Whiteside, when he sold to the grantor of appellant. His farm adjoined the land of Samuel Whiteside, but was not surrounded by it. It is true that Samuel Whiteside still owned land between that and a public road, and over which this lane passed; but other persons also owned lands adjoining the tract owned by appellant, so that the facts in the case by no means bring it within the rule as stated by Kent and other text-writers.
But the case of Hawton v. Freeman, 8 T. R. 50, is referred to as establishing a broader rule, and one, it is claimed, which will embrace this case. On turning to that case, we find that it is based on the general rule, and by no means enlarges it. Lord Kenyon says, in delivering the opinion of the court, that he found it impossible to distinguish that, from the general rule, where a man grants a close, surrounded by his own land, in which case the grantee has a way to it, of necessity, over the land of the grantor, merely because the grantor conveyed to the defendant in the character of trustee, as it could not be intended that he meant to make a void grant. He says, there being no other way to the land granted but over the lands of one of the persons who granted to him, he was entitled to a way of necessity, upon the authority of all the cases, that a grant must be taken most strongly against the grantor. This in nowise enlarges the rule itself, but only extends its application to a grantor who was a mere trustee.
We, after a careful consideration of the entire case, are of opinion that appellant has failed to show that he has a prescriptive right to the way, or that he acquired a right of way, as appurtenant to his farm, when he purchased of Ray Whiteside, or that he acquired or has a way from necessity. He, therefore, failed to establish a defense, and the judgment of the court below must be affirmed.
(3.) Repair of Way.
38 Vermont, 94. - 1865.
Peck, J. - The deed from the defendant to the orator, conveying the easterly portion of the building, grants to the orator "the right" to use the common passway "at the west end of the building, also a right to a passway therefrom to the rear of the portion of the building hereby conveyed, to be forever so fenced and provided with a gateway as to give said Walker, his heirs and assigns, room to pass of the width of a common cartway for all necessary and ordinary household purposes, to the rear of the building herein conveyed." This is the language of the grant. The common passway, mentioned in the grant, passes from the street down to the rear of the building; and the other passway granted passes from the common passway along in the rear of the defendant's part of the building to the rear of the orator's portion of the building. The two passways, if they can be so called, are nearly at right angles with each other at the point of intersection. It might with more propriety be said to be one entire passway, turning its course near the middle of it, at an angle or sharp curve, about ninety degrees. * * *