PITNEY, V. C.

Bill by Clara Camp against Georgiana F. Whitman and another. Decree for complainant.

The other facts fully appear in the following statement by PITNEY, V. C.:

The parties hereto are owners' of adjoining lots of land, and the object of the bill is to establish a right in the complainant, as such owner, to a carriage and wagon way from her lot across the lot of the defendants, to the public highway, and to have the same designated upon the ground. The facts are that at and prior to the 1st of March, 1889, the defendant Mrs. Whitman was the owner of a plot of land situate in Bloomfield, Essex county, N. J., on the north side of Belleville avenue, having a frontage on said street of 147 feet and 6 inches, and a depth of about 237 feet. On its easterly and northerly sides it was bounded by lands owned by other parties, and on its westerly side by a strip of laud about 55 feet in width, owned by the township of Bloomfield, and maintained as a public park, and which, in turn, is bounded on the west by Broad street, formerly known as the "Paterson Road." Between this park strip and the traveled way of Broad street is a horse-railroad track. On the Belleville a venue front of said lot defendants' house was situate. There were no improvements on the northerly or rear part of the lot, but it was used as a backyard or garden. On the 1st of March, 1889, by deed of that date, the defendants conveyed to the complainant a lot, taken from the rear of the whole lot, with a frontage of 60.11 feet upon the park and a depth of about 130 feet. The description contained in the deed is as follows: "Beginning in the easterly line of Broad street, at a point therein distant 176 feet and 29-100 of a foot northerly from the northerly line of Belleville avenue, and running from thence (1) along the easterly line of Broad street north, 18 degrees 55 min. E., 60 feet and 11100 of a foot, to the line of lands of Nathaniel H. Baldwin; thence (2) along this line south, 74 deg. 50 min. E., 126 feet and 90-100 of a foot, to the line of lands of Albert J. Philbrick; thence (3) along his line south, 13 deg. 52 min. W., 60 feet; thence (4) along line of said Georgiana F. Whitman N., 74 deg. 47 min. W., 132 feet and 18-100 of a foot, to Broad street, and place of beginning." It will be observed that this deed calls for its westerly boundary upon Broad street. The same call by the name of the Paterson road is found in the conveyance under which Mrs. Whitman obtained title to the whole plot, but the measurement, calls, and inclosure, considered together, limit the westerly boundary by the easterly edge of the strip so used for a park. The circumstances indicate that this call for a westerly boundary on Broad street had its origin in the supposition that all the land between it and the westerly side of Broad street was properly a part of Broad street. The complainant purchased her lot for the purpose of erecting thereon a residence, and such purpose was known to the defendants when they made the conveyance. She proceeded at once to erect a comfortable and rather expensive dwelling upon it. The contractors hauled the material therefor across the park strip, without objection on the part of the township authorities. After this the complainant proceeded to lay out a driveway from the westerly side or front of her lot across the park strip to Broad street, but was stopped in so doing by the township authorities, and it was admitted by the answer, and at the hearing, that they had power and authority, to prevent, and actually do prevent, any nearer approach to her premises by wheeled vehicles than the easterly side of Broad street proper. Some proof was offered that many years ago earth and gravel were placed on the park strip along the westerly side of defendants' lot from Belleville avenue northward towards the rear thereof, for the purpose of making a sidewalk, and it appeared that foot travelers were in the habit of passing along the easterly side of the park strip from Belleville avenue northward, and from the parts north of the complainant's property southward, to Belleville avenue. Immediately to the north of the complainant's lot at and prior to the date of the conveyance were two other houses, facing on the park strip, each of which had and enjoyed a driveway for carriages across the same to Broad street, but the park strip opposite these houses was narrower than opposite the complainant's lot, being wedge-shaped, with the edge of the wedge to the north.

Fred G. Burnham, for complainant.

Halsey Barrett, for defendants.

PITNEY, V. C. (after stating the facts.) Complainant rests her right—First, upon the familiar doctrine of a way of necessity; and, second, upon the affirmation in her deed that the lot so conveyed did front upon Broad street. The defendants insist that the facts show a present footway along the easterly edge of the park strip from Belleville avenue to the complainant's land, and that such a way satisfies the element of necessity. To this complainant replies that, under the circumstances, she is entitled to a right of way for wheeled vehicles; and, further, thatthe footway is not established in law by the evidence. That the complainant is entitled to some kind of a way for reaching the highway from her lot is perfectly clear. It was suggested, rather than argued, by the defendants that, as both parties contracted upon the mistaken supposition that the park strip was a part of Broad street, and that complainant would get access to the street across it, and as both parties were mistaken, the complainant ought not to visit the result of that mistake upon the defendants; that the actual situation was as well known to the complainant as to the defendants, and hence no equity arises, and no grant of a right of way of necessity should be presumed. Iain unable to adopt that view. The defendants are responsible for the language in the deed, which bounded the complainant's land upon Broad street, and the use of that language was an affirmation upon the part of the defendants that the complainant's lot did actually bound upon Broad street; hence it seems to me that the equities upon that score are not equal, but that the complainant's standing is superior. I think her right to a way by implied grant is quite as full and complete as it would be if there had been no misapprehension as to the character of the park strip. The only questions are: First, whether the necessity which, according to the authorities, is the foundation of the implied grant, is satisfied by the alleged footway along the east side of the park strip; and, if it be, then, second, whether such a footway exists.

The case shows quite clearly, and it was very properly admitted at the hearing, that the defendants knew of the purpose for which the lot was to be used by the complainant. In fact it was of no value for any other purpose. The character of the improvements put upon it are such as seem to me to preclude the idea that either party could have contemplated that a footway was all that was required for the use of the house. Now, the law implies the grant in order to carry out the intention of the parties, which, in a sense like the present, is that the grantee shall have the complete and beneficial use of the thing granted in the manner contemplated by the parties at the time. Sergeant Williams, in his note to Pomfret v. Ricroft, 1 Snund. 323a, note 6, suggests that the name "way of necessity" is correct "in a partial sense, because the way is a necessary incident to the grant." And again, he says: "For there seems to be no difference where a thing is granted by express words, and where by operation of law it pass as incident to the grant. In the latter case it would be a superfluous and inoperative clause in the deed to convey the incident by express words of the grant, being only expressio corum quae tacito insunt. Therefore, in both cases, the grant is the foundation of the title." But, admitting that the grant of a way is a necessary incident to the conveyance only where the way is necessary to the enjoyment of the thing conveyed, and that the test of such necessity is that the land conveyed is land locked, and does not touch a public highway, still I can find no authority for the position that a mere footway along a park is a public highway, and nonesuch was pointed out by counsel. A public highway is one over and upon which the public have a right to pass with cattle and wheeled vehicles. A sidewalk for foot travelers is a part of a highway, but does not itself constitute one, and never has, so far as I know, within the history of the common law. Ordinarily, in these cases, the right of way implied is one for all purposes, and the cases where it has been restricted are rare, and of recent date. In Gayford v. Moffatt, [1868] L. B. 4 Ch. App. 133, the question arose as to the character and extent of a right of way of necessity, granted by implication with a lease. Lord Cairns says, (page 136:) "Immediately after this lease was granted, this tenant, occupying the inner close, became entitled to a way of necessity through the outer close, and that way must be a way suitable to the business to be carried on on the premises demised, namely, the business of a wine and spirit merchant. This is the position in which the tenant stood after the lease was granted, and is the position in which he now stands." This, it is to be observed, was a case of implied grant by the grantor to the grantee, and not of a reservation, or, as it is sometimes called, a "regrant by the grantee to the grantor." The question as to the right and extent of a right of way of necessity reserved by implication by the grantor, or regranted by the grantee, was elaborately discussed in the later case of Corporation of London v. Higgs, 13 Ch. Div. 798, 1880. There the predecessor in title of the defendant, being the owner of a considerable tract of land situate in Epping forest, in the easterly part of London, had conveyed it to the city of London, reserving from thereout a small close called "Barn Hoppet," containing about two acres. At. the time of the conveyance Barn Hoppet was used for agricultural purposes. Subsequently the defendant, who had become the owner of Barn Hoppet, made preparations for the erection upon it of a house, and other buildings for the sale of refreshments to the public, and thereby to attract a large number of people, who would necessarily cross and recross the lands conveyed to the complainant, and the question was whether or not the right of way reserved by necessity was confined to agricultural purposes only, or whether it was a general right of way for all purposes. Sir George Jessel, master of the Rolls, held, hesitatingly, quoting Lord Cairns, in Gayford v. Moffatt, that the right of way was limited to the purposes for which the lands were used at the time of the grant. This case is relied upon by the defendants' counsel, and, if applied in its letter, would confine the implied grant of a right of way here to such a way as was necessary for the enjoyment of the premises as a vacant lot. But this is not the spirit of the opinion above referred to, which is that the right of way shall be such as is necessary for the use of the premises in the manner contemplated by the parties at the time of the conveyance. At page 805, Sir George Jessel uses this language: "The real question I have to decide is this: whether, ona grant of land wholly surrounding a close, the implied grant, or regrant, of a right of way by the grantee to the grantor to enable him to get to the reserved or excepted or inclosed close is a grant of a general right of way for all purposes, or only a grant of a right of way for the purpose of the enjoyment of the reserved or excepted close in its then state. * * * There is, as I have said, no distinct authority on the question. It seems to me to have been laid down in very early times—and I have looked into a great number of cases, and, among others, several black-letter cases —that the right to a way of necessity is an exception to the ordinary rule that a man shall not derogate from his own grant, and that the man who grants the surrounding land is in very much the same position as regards the right of way to the reserved close as if he had granted the close, retaining the surrounding land. In both cases there is what is called a 'way of necessity;' and the way of necessity, according to the old rules of pleading, must have been pleaded as a grant, or, where the close is reserved, as it is here, as a regrant." And, further on, he says, (page 800:) "Well, now, if we try this case on principle,—treating this right of way as an exception to the rule,—ought it to be treated as a larger exception than the necessity of the case warrants? That, of course, brings us back to the question, what does the necessity of the case require? The object of implying the regrant, as stated by the older judges, was that, if you did not give the owner of the reserved close some right of way or other, he could neither use nor occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have from it? Is ho entitled to say, 'I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant?' And, if that is the true rule, —that he is not to have more than necessity requires, as distinguished from what convenience may require,—it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a regrant to himself of such a right of way as will enable him to enjoy the reserved thing as it is." And again, on page 807, he says: "I may be met by the objection that a way of necessity must mean something more than what I have stated, because, where the grant is of the inclosed piece, the grantee is entitled to the use of the land for all purposes, and should, therefore, be entitled to a right of way commensurate with his right of enjoyment; but there again the grantee has not taken from the grantor any express grant of a right of way, and all he can be entitled to ask is a right to enable him to enjoy the property granted to him as it was granted to him. It does not appear to me that the grant of the property gives any greater right. But, even if it did, the principle applicable to the grantee is not quite the same as the principle applicable to the grantor; and it might be that the grantee obtains a larger way of necessity (though I do not think he does) than the grantor does under the implied grant." These two cases, as before remarked, go no further, as I interpret them, than to hold that the way granted or reserved is to be confined to the uses presumably in the contemplation of the parties at the date of the conveyance. And as to the latter of them I cannot but think that Sir George Jessel was unconsciously, but, in my judgment, properly, influenced by the circumstance that the grantor there was in fact derogating from his own grant, and for that reason, he should be subject to a stricter rule than that applicable here. Thus, if the prior owner had conveyed Barn Hoppet to the city of London, knowing that it was acquired for the purpose of erecting on it some municipal building, I am satisfied the result would have been different, and a grant to the city of London of a way suitable for such use across the remaining lands reserved by the owner would have been presumed. An examination of the cases cited in Gale & Whatly on Easements (page 74) shows that the courts had difficulty at first in presuming anything in favor of a grantor against his own grant. See note to Pomfret v. Ricroft, 1 Wms. Saund. 323; also Suffield v. Brown, 4 De Gex, J. & S. 185, and other cases cited in Toothe v. Bryce, (N. J. Ch.) 25 Atl. Rep. 182.

Denne v. Light,3 Jur. (N. S.) 627, 26 Law J. Ch. 459, was a suit by vendor against vendee for specific performance of a written contract to convey a small piece of land situate upon Ham Common, not touching any high way. Nothing was said in the contract about any right of way or access to the lot. Vendee's solicitor required of the vendor to show a right of way for carriages and carts, which she was unable to do, and for that reason the court refused specific performance. Turner, L. J., said (26 Law J. Ch. 464, 3 Jur. [N. S.] 628) that he thought it would be repugnant to the principles of a court of equity to decree specific performance of a contract for a sale of any land "to which there was no right of way for carts and carriages; to do so would amount to making a man buy that which he could by no possibility enjoy." This case is significant as to what is considered sufficient to satisfy the necessity of access. For these reasons 1 come to the conclusion that complainant is entitled to have a carriage way over the defendants' lot from Belleville avenue to her lot, even though there be a footway along the park strip from the same street as alleged by the defendant. Upon that question I express no opinion. Unless the parties shall agree upon the route and width of the carriage way there must be a reference to the master to determine it. Complainant is entitled to costs.