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 .
71. Green v. Goff, 153 111. 534, 39 N. E. 975; Phillips v. Dressier, 122 Ind. 414, 17 Am. St. Rep. 575, 24 N. E. 226; Boyd v. Bloom, 152 Ind. 152, 52 N. E. 751 (although use of way to be "free and unincumbered); Berg v. Neal, 40 Ind. App. 575, 82 N. E. 802; Maxwell v. Mcatee, 9 B. Mon. (Ky.) 20, 48 Am. Dec. 409; Ames v. Shaw, 82 Me. 379, 19 Atl. 856; Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506; Short v. De-vine, 146 Mass. 119, 15 N. E. 148; Gibbons v. Ebding, 70 Ohio St.
298, 101 Am. St. Rep. 900, 71 N. E. 720; Connery v. Brooke, 73 Pa. 80; Watson v. Coke, 73 S. Car. 36, 53 S. E. 537; Utah-idaho Sugar Co. v. Stevenson, 34 Utah, 184, 97 Pac. 26; Whaley v. Jar-rett, 69 Wis. 613, 2 Am. St. Rep. 764; Collins v. Degler, 74 W. Va. 455, 82 S. E. 265 (though grant of "free right of way"); Mitchell v. Bowman, 74 W. Va. 498, 82 S. E. 330.
That a gate was there at the time of the grant is obviously a circumstance tending to strengthen the presumption that it was contemplated by the parties that a gate might thereafter be maintained. Truax v. Gregory, 196 111. 83, 63 N. E. 674; Garland v. Furber, 47 N. H. 304. Conversely, the fact that the land had for a long time been used for purposes of passage without any gates having been erected tends to show that no right to erect gates was contemplated. See Raisor v. Lyons, 172 Ky. 314, f89 S. W. 234; Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113; able bars at the termini of the way on the land.72 It is readily conceivable, indeed, that he might have a right to maintain a fence at the terminus of a footway, with merely steps to aid in climbing the fence. On the other hand, if the grant or reservation, construed with reference to the surrounding circumstances, shows an intention that no fence or gate shall be erected, such a showing of intention is controlling.73
In the absence of any express language bearing upon the question of the right in this regard, the courts ordinarily treat it as a question of fact whether gates or bars will unreasonably interfere with the exercise of the easement of passage.74 Even though the owner of the servient tenement would not otherwise have the right to place a gate or bars across the way, he may acquire the right by reason of his maintenance of the gate or bars for the prescriptive period.75
The courts have but rarely considered the question of the right of the owner of the servient tenement to maintain a fence with a gate therein, not at one or both of the termini of the way, but across the way at a point well within his own land,76 for the purpose of dividing his land into different tracts, to be utilized for different purposes. Inability thus to divide his land by-fences running across the line of the way might involve a very considerable hardship, and it does not seem that, in the ordinary case, the existence of a gate at a point within his own land would involve inconvenience to the person using the way to any greater extent than would a gate located at his boundary. Whether he may so erect a fence or fences across the line of the way for the purpose of dividing his land, with a gate therein at the point where the way strikes the fence, would seem properly to be determined by the same considerations as control in the case of a fence and gate at the terminus of the way, with the additional consideration, perhaps, of his bona fides in erecting the fence.
Garland v. Furber, 47 N. H. 301; Newsora v. Newsom (Term. Ch.), 56 S. W. 29.
72. Bakeman v. Talbot, 31 N. Y. 366, 88 Am. Dec. 275; Ball v. Allen, 216 Mass. 469, 103 N. E. 928; Goodale v. Goodale, 107 Me. 301, 78 Atl. 567; Jewell v. Clement, 69 N. H. 133, 39 Atl. 582.
73. Mineral Springs Mfg. Co. v. Mccarthy, 67 Conn. 279 (way "to be unincumbered"); Devore v. Ellis, 62 Iowa, 505, 17 N. W. 740 (fences along way); Goodale v. Goodale, 107 Me. 301, 78 Atl. 567; Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113; Dickenson v. Whiting, 141 Mass. 414 (existing lane); Patton v. Western Carolina Educational Co., 101 N. C. 408, 8 S. E. 140 (reservation of "thirty three feet for a street").
74. See Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506; Jewell v. Clement, 69 N. H. 133, 39 Atl. 582; Brill v. Brill, 108 N. Y. 511, 15 N. E. 538; Connery v. Brooke, 73 Pa. 80; Griffin v. Gilchrist, 29 R. I. 200, 69 Atl. 683, and other cases cited, ante, notes 71-73.
75. Ball v. Allen, 216 Mass. 469. 103 N. E. 928.
In the case of a way based upon prescription, the question of the right of the servient owner to maintain a gate across the way has usually been regarded as a matter to be determined by the consideration whether such a gate was maintained during the prescriptive period.77 In other cases, however, the view has been adopted that the controlling consideration is whether the gate would involve an unreasonable interference with the exercise of the easement, having regard to the nature thereof.78
76. In Short v. Devine, 146 Mass. 119, 15 N. E. 148, the court apparently regards the fact that the gate is "in the middle of" the way, and not at the terminus thereof, as a consideration adverse to the right to maintain it.
That there may be a right to maintain a fence and gate or bars for the purpose of dividing the servient tenement is apparently assumed in Goodale v. Good-ale, 107 Me. 301, 78 Atl. 567; Bakeman v. Talbot, 31 N. Y. 366,
88 Am. Dec. 275, and is stated in Bean v Coleman, 44 N. H. 539, and Dyer v. Walker, 99 Wis. 404, 75 N. W. 79 (prescriptive way).
77. Hill v. Miller, 144 Ga. 404, 87 S. E. 385; Frankboner v. Corner, 127 Ind. 164, 26 N. E. 766; Frazier v. Myers, 132 Ind. 71, 31 N. E. 536. Miller v. Pettit, 127 Ky. 419, 105 S. W. 892; Shivers v. Shivers, 32 N. J. Eq. 578, affirmed 35 N. J. Eq. 562; Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. 632.
78. Ames v. Shaw, 82 Me. 179,
Occasionally one having a right of way over another's land has been required to erect a gate or gates at the border of the land, to prevent the escape or entrance of stock.78a The imposition of such an active duty upon the owner of the dominant tenement to protect the owner of the servient appears not to be generally recognized.78b