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 .
76. Perry v. Snow, 165 Mass. S3, 42 N. E. 117.
77. Wells v. Tolman, 156 N. Y. 636, 51 X. E. 392.
78. Hollins v. Verney, 13 Q. B. D. 304.
79. Collins v. Slade, 23 Weekly Rep. 199.
80. Wells v. Tolman 156 N. Y. 636, 51 N. E. 392; Mercer v. Woodgate, L. R. 5 Q. B. 26.
81. Shreve v. Mathis, 63 X. J. Eq. 170, 52 Atl. 234; Gunson v. Healy. 100 Pa. 42.
82. Griffith v. Rigg, 18 Ky. Law Rep. 463, 37 S. W. 58; Bax-endale v. Xorth Lambeth Liberal, etc., Club (1902) 2 Ch. 427.
83. Metcalfe v. Westaway, 34 L. J. C. P. 113; Cleaves v. Bra-man, 103 Me. 154, 68 Atl. 857; Shreve v. .Mathis, 63 N. J. Eq, 170, 52 Atl. 234.
84. Baxendale v. North Lambeth Liberal Club (1902) 2 Ch. 427.
85. Shreve v. Mathis, 63 N. J. Eq. 170, 52 Atl. 234; Commonwealth v. Burford, 225 Pa. 93, 73 Atl. 1064.
In Tutwiler Coal, Coke & Iron Co. v. Tuvin, 158 Ala. 657, 48 So. 79, it was apparently held that a person was not justified in using a way to go to a residence to collect a furniture bill unless circumstances appeared showing an invitation to such person on the part of the person entitled to the way, to use the way, or his consent to such use. It would seem that the purchase of the furniture might have been regarded as justifying the inference that the purchaser consented to have the vendor send to collect the bill. The court emphasises the fact that the way was one of necessity, but it is difficult to see the materialty of this consideration.
Not guilty of trespass in using the way, and the owner of the easement would, it seems, have a right of action in case there was an interference with the use of the way by a member of one of these classes.
The owner of the right of way may have, in some cases, in addition to the privilege of passage, and as incidental thereto, the privilege of placing goods temporarily on that part of the servient tenement on which the way is located,86-87 of letting horses and carriages stand thereon,88 or of swinging a gate thereover.89 The grant of a right of way in general terms has been construed as not enabling the grantee to lay a pipe for the transportation of gas or oil,90 to string electric light wires,91 to fence off the way,92 or to take ice,93 or herbage.94 One to whom was granted a right of way across a creek was regarded as entitled to build a bridge although for twenty years after the grant there was merely a ford.94a
The person entitled to use a private way cannot deviate therefrom on the land outside of the way because the way is impassable, unless, perhaps, there is an obligation upon the servient owner to repair the
86-87. Appleton v. Fullerton, 1 Gray (Mass.) 186. Compare Kaler v. Beanani, 49 Me. 207.
88. Van O'linda v. Lathrop, 21 Pick. (Mass.) 292, 32 Am. Dec. 261.
90. United States Pipe Line Co. v. Delaware, L. & W. R. Co., 62 N. J. L. 254, 42 L. R. A. 572, 41 Atl. 759; Allen v. Scheib, 257 Pa. 6, 101 Atl. 102.
91. Carpenter v. Capital Electric Co., 178 111. 29, 43 L. R. A. 645, 69 Am. St. Rep. 286, 52 N. E. 973.
92. Moffitt v. Lytle, 165 Pa. 173, 30 Atl. 922; Wiley v. Ball, 72 W. Va. 683, 79 S. E. 659; Sizer v Quinlan, 82 Wis. 390, 16 L. R.
A. 512, 33 Am. St. Rep. 55, 52 N. W. 590; Contra, Murray v. Murray v. Dickson, 57 Tex. Civ. 620, 123 S. W. 179, where there were circumstances to show that it was contemplated that the way was to be used for driving cattle, and Harvey v. Crane, 85 Mich. 316, 12 L. R. A. 601, 48 N. W. 582, where the right of way was not created by grant but was laid off under the statute.
93. Julien v. Woodsmall; S2 Ind. 568.
94. Emans v. Turnbull, 2 Johns. (N. Y.) 313, 3 Am. Dec. 427.
94a. Hammond v Hammond, 258 Pa. 51, 101 Atl. 855.
Way,95 or unless the latter has caused the obstruction of the way.96
- Location. If the location and limits of the right of way are not defined in the grant, a reasonably convenient and suitable way is presumed to be intended, and the right cannot be exercised over the whole of the land.97 Subject to the requirement of reasonable convenience and suitability, the owner of the servient tenement may ordinarily, in such case, fix the location, and it has been considered that if he fails to do so, the owner of the easement is entitled to fix it.98 And this is the case as regards a way of necessity to the same extent as any other way created by grant.99
95. Taylor v. Whitehead, 2 Doug. 745; Lund v. Wilcox, 34 Utah, 205, 97 Pac. 33.
96. Selby v. Nettlefold, 9 Ch. App. Ill; Farnum v. Piatt, 8 Pick. (Mass.) 339; Bass v. Edwards, 126 Mass. 445; Kent v. Judkins, 53 Me. 162; Rockland Water Co. v. Tillson, 75 Me. 170; Haley v. Colcord, 59 N. H. 7, 47 Am. Rep. 176; Jarsdadt v. Smith, 51 Wis. 96. Contra, Williams v. Safford, 7 Barb. (N. Y.) 309. See Holmes v. Seely, 19 Wend. (N. Y.) 507.
97. Long v. Gill, 80 Ala. 408; Johnson v. Kinnicutt. 2 Cush. (Mass.) 153; Gardner v. Webster, 64 N. H. 520, 15 Atl. 144; Grafton v. Moir, 130 N. Y. 465, 27 Am. St. Rep. 533, 29 N. E. 974 (reservation).
98. Ballard v. Titus, 157 Cal. 673, 110 Pac. 118. Shedd v. America Maize Products Co., 60 Ind. App. 146, 108 N. E. 610; Bangs v. Parker, 71 Me. 458; Mckenney la. Gerrish v. Shattuck, 128 Mass. 571; Eureka Land Co. v. Watts, 119 Va. 506, 89 S. E. 968; See Morris v. Blunt, 49 Utah, 243, 161 Pac. 1127.
McKenney, 216 Mass. 248, 103 N. E. 631; Bunch v. Wheeler, 210 Mo. 622, 109 S. W. 654; Callen v Hause, 91 Minn. 270, 97 N. W. 973; Smith v. Wiggin, 52 N. H. 112; Peduzzi v. Restelli, 79 Vt. 349, 64 Atl. 1128; Stephens v. Gordon, 22 Can. Sup. Ct. 61. In Mc Kell v. Collins Colliery Co., 46 W. Va. 625, 33 S. E. 765, it is said that the owner of the way may locate it. The opinion refers to Hart v. Connor, 25 Conn. 331, but there the right to locate the way was expressly reserved 99. Gale, Easements [8th ed.] 1982; Kripp v. Curtis, 71 Cal. 62, 11 Pac. 879; Ritchey v. Welsh, 149 Ind. 214, 40 L. R. A. 105, 48 N. E. 1031; Russell v. Jackson, 2 Pick. (Mass.) 574; Bass v. Edwards,