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 .
126 Mass. 445; Powers v. Harlow, 53 Mich. 507, 51 Am. Rep. 154; Herrin v. Siebern, 46 Mont. 226,
127 Pac. 323; Holmes v. Seely, 19 Wend. (N. Y.) 507; Capers v. Wilson, 3 Mccord, (S. C.) 170; Mcmilin case there has been, up to the time of the grant and at the time thereof, a user of the land for purposes of passage along a certain line, this will, it has been said, be presumed to be the location intended.1
Frequently, the location of the way is determined by subsequent agreement,la or by the exercise of the right of way in a particular line with the acquiescence of the owner of the servient tenement,2 the parties to the grant thus placing their own construction thereon in this regard.
The power of a court of equity to fix the location has been recognized in a number of cases,3 apparently len v. Mckee, 129 Tenn. 39, 164 S. W. 1197; Jenne v. Piper, 69 Vt. 497, 38 Atl. 147.
But not, it has been said, when the way of necessity resulted from a partition proceeding between several persons, so that the recognition of an option to locate in one of them would involve a power to discriminate between the others. Mesmer v. Uharriet, 174 Cal. 110, 162 Pac. 104.
1. Karnmuller v. Krotz, 18 Iowa, 352; Cotting v. Murray, 209 Mass. 133, 95 N. E. 212; Thompson v. Flint & P. M. R. Co., 131 Mich. 95, 90 N. W. 1037; Crocker v. Crocker, 5 Hun, (N. Y.) 587; Kraut's Appeal, 71 Pa. St. 64; Kinney v. Hooker, 65 Vt. 333, 36 Am. St. Rep. 864.
2. Roberts v. Stevens, 40 111. App. 138; Dickenson v. Crowell, 120 Iowa, 254, 94 N. W. 495; Roland v. O'neal, (Ky.) 122 S. W. 827,
(way of necessity); Bannon v. Angier, 2 Allen (Mass.) 128; O'brien v. Goodrich, 177 Mass. 32, 58 N. E 151; Board of Sup'rs of Lamar County v. Elliott, 107 Miss. 841, 66 So. 203; Davis v. Watson, 89 Mo. App. 15; Wynkoop v. Burger, 12 Johns. (N. Y.) 222; Crocker v. Crocker, 5 Hun, (N. Y.) 587; Warner v. Columbus, etc., R. Co. 39 Ohio St. 70; Eureka Land Co. v. Watts, 119 Va. 506, 89 S. E. 968; Fritsche v. Fritsche, 77 Wis. 266, 45 N. W. 1C88; Kalinowski v. Jacobowski, 52 Wash. 359, 100 Pac. 852.
But it was held that the acquiescence by the servient owner in the passage by the dominant owner over a particular line did not show a location of the way in this line if the condition of the servient tenement was such that it was immaterial where the other passed. Smith v. Wiggin. 52 N. H. 112. And see Colt v. Redfield, 59 Conn. 427, 22 Atl. 426.
3. Lide v. Hadley, 36 Ala. 627, 76 Am. Dec. 338; Ballard v. Titus, 157 Cal. 673, 110 Pac. 118; Davidson v. Ellis, 9 Cal. App. 145, 98 Pac. 254; Mckenney v. Mckenon the ground that a multiplicity of suits is thereby avoided.
- Width of way. As regards the width of the way, a specific statement in the grant obviously governs,4 and such a statement is not controlled by considerations as to what is reasonable or necessary.5 A specification of the way as being of a certain width has been regarded as not entitling the grantee to utilize more than that width in order to be able to make a road of that width.6
If the width is not fixed by the terms of the grant, the grantee is ordinarily entitled to a way of such width as is sufficient to afford reasonable access and egress.7 And if the way is granted for a particular purpose, what is reasonably necessary for that purpose is to be considered.8 That the grantee used a particular width with the acquiescence of the grantor has been regarded as controlling in this regard as a practical location of the way.9 And the particular grant may call for a ney, 216 Mass. 248, 103 N. E. 6731; Burnham v. Mahoney, 222 Mass. 524, 111 N. E. 39G; Higbee Fishing Club v. Atlantic City Electric Co., 78 N. J. Es. 434, 79 Atl. 326 (way of necessity); Gardner v. Webster, 64 N. H. 520, 15 Atl. 144; Mcmillan v. Mckee, 129 Tenn. 39, 164 S W. 1197 (way of necessity).
4. See Stetson v. Curtis, 119 Mass. 266; Gray v. Kelley, 194 Mass. 533, 80 N. E. 651.
5. Ballard v. Titus, 157 Cal. 673, 110 Pac. 118.
6. Ballard v. Titus, 157 Cal. 673, 110 Pac. 118; Dewire v. Han-ley, 79 Conn. 454, Atl. 573.
In Stevenson v. Stewart, 7 Phila. 293, it was considered that a grant of a right to use an alley three feet wide did not give a right to a way three feet wide, the alley being clearly defined by permanent structures as an alley less than three feet wide. The reference to width was obviously not a statement of the width of the way to be exercised, but merely an inaccurate description of the place where it was to be exercised.
7. Bright v. Allan, 203 Pa. 386; Lipsky v. Heller, 199 Mass. 310, 85 X. E. 453; Walker v. Pierce, 38 Vt. 94; Wiley v. Ball, 72 W. Va. 685, 79 S. E. 659.
8. Drunimond v. Foster, 107 Me. 401, 78 Atl. 470; O'brien v. Murphy, 189 Mass. 353, 75 N. E. 700.
9. George v. Cox, 114 Mass.
10. Salisbury v. Andrews, 19
Pick. (Mass.) 250; Gerrisb v.
Shattuck. 128 Mass. 571; Stevenson v. Stewart. 7 Phila. (Pa.) 293.
Construction as intending a way as already existent and defined by use or paving or the like.10 A grant or reservation of a right of passage over a space of a named width has been construed as giving a right of way, not of that width, but of merely a convenient width, to be located upon that space.11
- Change of location. After the point or place at which, or line along which, an easement is to be exercised has once been fixed, whether by the express terms of the grant, or by agreement or acquiescence, one of the parties cannot change such location without the consent of the other.12 There are in this country, however, several cases to the effect that the location of a way may be changed by oral agreement of the parties, or agreement inferred from conduct.13 These v White, 4 Barb. (N. Y.) 60; Smith v. Barnes, 101 .Mass. 275; Chenault v. Gravitt, 27 Ky. L. Rep. 403, 85 S. W. 184; Berkey & Gay Furniture Co. v. Valley City Milling Co., 194 Mich. 234, 16C N. W. 648; Rumill v. Robbins, 77 Me. 193 (way of necessity); Tar-butt v. Grant, 94 Me. 371, 47 Atl. 899; Smith v. Lee, 14 Gray (Mass.) 473; Gage v. Pitts, 8 Allen (Mass.) 531; Davidson v. Kretz, 127 Minn. 313, 149 N. W. 652; Lawton v. Tison, 12 Rich. (S. C.) 88; Stockwell v. Fitzgerald, 70 Vt. 468, 41 Atl. 504 f.ee Mary Helen Coal Co. v. Hatfield, 75 W. Va. 148, 83 S, E. 292.