The only remaining question is, whose duty is it to grade down that way. When a party grants a private way, he is not bound by implication to construct or keep in repair the way granted. That duty rests on the grantee if he wishes to enjoy the way, and he takes by the grant the right to do so. But it appears in this case that the defendant has filled up and raised this common way from the street to the rear of his building since the date of his deed to the orator, thereby causing, to some extent, the abrupt descent which embarrasses the orator in approaching the rear of his house through the way in question. As it does not appear affirmatively that the master's report and decree of the court of chancery require the defendant to grade down that way more than he has raised it since the execution of his deed to the orator, we find no error in this part of the decree. The defendant objects to this portion of the decree on the ground that Anderson owns this common way in common with the parties to this suit, and that the defendant, by complying with the decree, will trespass upon Anderson. But it is right, as between the orator and the defendant, that the latter should undo what, to the prejudice of the orator, he has improperly done; and the defendant has a right, as between him and Anderson, to make necessary and proper repairs. Under these circumstances this decree may properly be made against the defendant without making Anderson a party. The view we take of the case destroys the main basis on which the master awards damage to the orator. No substantial damage worth the cost of estimating has been sustained, and none is allowed.
The decree of the court of chancery is reversed, and the cause remanded with directions to that court to enter a decree for the orator only requiring the defendant to grade the common passway as required by the original decree, and as the orator fails in the main portion of his bill, neither party should recover costs.
(4.) Excessive use of Way.
Eastman, J., in
32 New Hampshire, 316. - I 1855.
There is one ground, however, which appears to us to settle the present action, whatever might be the finding of the jury or the conclusions of the court upon the other points.
There is no pretence of any right of way of any kind having been acquired by anyone beyond and east of lot 54; the Bean lot, the
Brown lot and Sheafe lots lying east and south of 54, and adjoining thereto, were acquired by the plaintiff in 1847 and 1848, and this suit was commenced in 1849.
It is well settled that if a person have a right of way over another's land to a particular close, he cannot enlarge it and extend it to other closes. Com. Dig., Title Chimin, D. 5; Woolrych on Ways, 34; Senhouse v. Christian, 1 Term, 569; Howell v. King, 1 Mod. 190; Bac. Abr., Highway, C.; Dxvenport v. Lamson, 21 Pick. 72; Comstock v. Van Deusen, 5 Pick. 166.
In Davenport v. Lamson, the plaintiff brought trespass against the defendant for breaking and entering his closes, called the eight-acre lot, and the Brown lot. and the defendant justified under a right of way across the lots to a three-acre lot belonging to him. It appeared that the defendant owned the three-acre lot, and also a nine-acre lot purchased by him subsequently to his becoming tenant of the former, and that he had a right of way to the three-acre lot. At the time of the trespass these two lots, the three-acre and the nine-acre, were not separated by any fence, and were one mowing field; and the defendant, taking a load of hay, which was made up partly from each lot, proceeded from the three-acre lot across the plaintiff's close; and it was held that the defendant was liable for the trespass; that he had no right to use the way as a way from the nine-acre lot, although in so doing he passed last from the three-acre lot upon the plaintiff's close, and a part of the load was taken from the three-acre lot.
The doctrine of the books upon this question is undoubtedly sound. If a right of way to one lot can be extended at will, by the tenant, to another lot that may adjoin it, then may it be extended to a third, and so on to any limits that the tenant may choose.
Admitting, then, for the purposes of this decision, and for that only, that the defendant had a right of way to lot 54, to the extent and in the manner claimed by him, and still he cannot sustain this action, for he was undoubtedly in the wrong in attempting to cross the defendant's close to go upon the Brown or Sheafe lot.
The case finds that, at the time of the alleged assault, the plaintiff was going to what he called his "Mountain pasture," which consisted of the three lots, the Bean, the Sheafe and the Brown lots, to salt his sheep, and that he actually went and called his sheep together in the South pasture, which, in that year, was formed by a part of the Bean lot and the Sheafe lot, there being no fence between these lots; it appearing, also, that the sheep generally ran in the Brown and Sheafe lots.
Now, what was the plaintiff using the way for, when the defendant stopped him? Not to go to the quarter acre; not to go to the Bean lot, and salt his sheep there; but to go to the "Mountain pasture," wherever he might find his sheep. That was his purpose, and that purpose he carried into effect. It cannot be said that his intent was only to go to the quarter acre or to the Bean lot, because the fact is stated in the case to be otherwise. The case finds that the fracas occurred while the plaintiff was passing over the way in question, on the land of the defendant, to salt his sheep in his Mountain pasture. He claimed the unrestricted right to go to the Mountain pasture. It was with that intent that he entered upon the way; to go to any part of the pasture; and he was in the exercise of a right which did not exist in him when the defendant interfered; the right to go to the Mountain pasture, the whole pasture, wherever the sheep might be.