This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
95. Smith v. Griffin, 14 Colo. 429, 23 Pac. 905; Watson v. French, 112 Me. 371, L. R. A. 1915C, 355, 92 Atl. 290; Pettin-gill v. Porter, 8 Allen (Mass.) 1,
85 Am. Dec. 671; Foeffees of Grammar School in Ipswich v. Proprietors of Jeffrey's Neck Pasture, 174 Mass. 572; O'rorke v. Smith, 11 R. I. 259, 23 Am. Rep. 440; Crotty v. New River & Pocahontas Consol. Coal Co., 72 W. Va. 68, 78 S. E. 230. See as to the citerion of disproportionate expense, U. S. v. Rindge, 208 Fed. Cll.
96. In Feoffees of Grammar S-chool in Ipswich v. Proprietors of Jeffrey's Neck Pasture, 174 Mass. 572, it was decided that a way of necessity existed, although there was access by water, if the latter mode of access was not available for general purposes to meet the requirements of the uses to which the property would naturally be put. And in Jay v. Michael, 92 Md. 198. it is assumed that the fact of access by water is immaterial. But in Kings-ley v. Gouldsburough Land Improvement Co., 86 Me. 280; Hil dreth v. Googins, 91 Me. 227;
Since the recognition of a way -of necessity is based on the intention imputed to the parties at the time of the severance of the ownership, it follows that the existence of the privilege, and also its extent, is to be determined with reference to what is necessary for the use of the premises in the manner contemplated by the parties at the time of such severance.97 So if the parties contemplate a use of the land for a particular business, there is a right of way of necessity sufficient for the purposes of the business, if no other way sufficient for that purpose exists,98 and if the parties contemplate a use of the land for a residence, there is a way of necessity sufficient for that purpose, if no other way so sufficient exists.99 The fact that a particular use of the land is being made at the time of the severance of ownership does not of itself show that the parties do not contemplate the possibility of another use of the land, and hence does not preclude the recognition of a way of necessity, upon a subsequent change of use, in accord with the requirements of the latter rather than of the former use.1 And the view has been taken that the parties are to be presumed, in the absence of any evidence on the subject, to have in mind any lawful use of the land.2
Lawton v. Rivers, 2 Mccord (S. C.) 445; Turnbull v. Rivers, 3 Mc-cord (S. C.) 131; Fitchett v. Mellow, 29 Ont. Rep. 6, - it was decided that no such right of way-existed, when there was access by water, it being left, in the second of the cases cited, to the jury to say whether the access by water was "available". See also Staples v. Cornwall 114 App. Div. 596, 99 N Y Supp. 1009.
97. Wlhittier v. Winkley, 62 N. H. 338; Camp v. Whitman, 51 N. J. Eq. 467, 26 Atl. 917, discussing Corporation of London v.
Riggs, L R. 13 Ch. D. 798. See Mitchell v. Seipel, 53 Md. 251.
98. Gaylord y. Moffat, L. R. 4 Ch. App. 133.
99. Camp v. Whitman, 51 N. J. Eq. 467 26 Atl. 917.
1. In Myers v. Dunn, 49 Conn. 71 it was decided that although thre was an express grant of a right of way for carting wood from the land, a residence having subsequently been erected thereon, there was a way of necessity thereto for general purposes.
2. Whittier v. Winkley, 62 N.
The grantor or grantee of land obviously cannot, by the subsequent erection of obstacles to access to the land, create a necessity for this purpose which did not exist at the time of the severance of ownership,3 nor can he create such a necessity by such subdivision of his property as he may subsequently make on the sale thereof.3a
That the grantee of land, being a municipality or subdivision of a state, has the right to obtain land for a road by condemnation proceedings does not preclude it from claiming a way of necessity.3b