Opinion
May Term, 1899.
Frank E. Cady, for the appellant.
Frank S. Coburn, for the respondent.
The real controversy between the parties, within the scope of their pleadings, narrows down to the location of the southerly boundary of defendant's purchase. In his conveyance the southerly point is at high-water mark, and northerly along the same designated course. The lake at this place has an uneven boundary, indenting into the land, so that south of the buildings it forms a cove or bayou, and it is contended by the plaintiff that the water extends at high-water mark to the railroad embankment, and that this is, therefore, the southerly limit of the defendant's possession. The defendant's witnesses do not definitely locate the high-water mark as fixing his southerly line, but there is considerable testimony tending to show that this mark is not up to the embankment, but ample room is left between the railroad lands and high water for the driveway used by the defendant and Burdick in their occupancy of these premises. South of this cove the land ascends to the farm crossing, and the high-water mark, as maintained by defendant, is even south of this crossing, which is also a part of plaintiff's lands, although upon the trial and by his answer the defendant pressed his claim only to this crossing.
Conflicting testimony relating to the location of high-water mark was sufficient to make a fair question of fact, and if the verdict depended upon that alone it could stand the test. The defendant, however, claimed other defenses, and proof was given in their support, and they were submitted to the jury to pass upon.
It is contended by the defendant that he and his predecessor, Burdick, used a driveway along this land and over this crossing from the commencement of their possession; that they constructed this private road, expended money in its making, repair and beautification from time to time, and that Wyckoff assented to this user. It is contended that the defendant, therefore, has a right of way by prescription over these premises, to and including the farm crossing.
Again, it is maintained the defendant purchased the land of Wyckoff with no other exit than this crossing; that the railroad embankment was ten or twelve feet in height, and passage over it was impracticable, and that defendant and his grantors had a right of way by necessity to reach the highway. The rule is a familiar one that a purchaser of land, accessible only over the lands of his grantor, has a right to cross the premises of such grantor to reach the land hemmed in. ( Holmes v. Seely, 19 Wend. 507.) And if the grantor omits to select the right of way, then the grantee may make the designation, and after its selection it remains as the fixed right as long as the necessity exists. ( Onthank v. L.S. M.S.R.R. Co., 71 N.Y. 194; Palmer v. Palmer, 150 id. 139.)
A right of way by necessity is permissible only where the access is essential to the enjoyment of the land purchased. It cannot be founded upon convenience. (2 Wn. Real Prop. [3d ed.] 306.)
Owasco lake is a navigable body of water, permitting an unimpeded way out over it, so we are not clear that an easement by necessity exists in favor of defendant. (Jones Ease. § 320; Kingsley v. Gouldsborough Land Improvement Co., 86 Maine, 279.)
It is urged this driveway is a public highway. This suggestion is founded upon actual user by neighbors and others, but there is no proof it was laid out as a public road, or that it was ever worked or accepted by the proper authorities. The case shows none of the indicia essential to constitute a public highway. There is no inkling of either of these defenses in the answer, and the objection to the reception of evidence bearing upon these issues was raised in a timely and definite manner.
The complaint avers title in the plaintiff, charging the defendant with wrongfully withholding possession, alleging acts in support of this contention. The defendant pleads a general denial, and then specifically affirms legal title in himself. So the issue of title is the real one presented. The defense of right of way by prescription, or by necessity, or that an actual highway exists, is like adverse possession, an affirmative defense, and must be set forth in the answer. ( Ford v. Sampson, 8 Abb. Pr. 332; Hansee v. Mead, 27 Hun, 162.)
These defenses do not show title in defendant. They are on the assumption the plaintiff possessed the legal title, but has lost it, not by parting with it by conveyance, but lapse of time, or the intervention of an equity in another created by the grantor, has rendered impossible the maintenance of possession by the plaintiff as against the defendant.
The learned trial judge, with apt illustration, submitted these questions to the jury as the vital ones in the case for their determination. He further stated that, if any one of these facts was found by them in favor of defendant, its verdict should be for him. If the defense of prescriptive right, or that of right of way by necessity, or that of public highway existed, it did not justify a verdict in behalf of defendant. He claimed title to those lands, and a general verdict in his behalf vindicated this claim. If plaintiff was entitled to the fee of the lands, then the verdict should have so stated, and subject to the easement or servitude of defendant, if he possessed it. This easement, if it existed, did not embrace all the disputed territory, and the land contiguous to it still remained in the plaintiff, unless defeated by the superior legal title of the defendant. The jury found the title in the defendant, according him the possession, but those findings may have been based upon the general statement of the trial judge that an easement entitled the defendant to a verdict. No distinction was made between the right of the defendant to pass over the lands, which is a mere easement, and the absolute legal title. Presented as this was in a distinct, emphatic manner by the trial judge, the jury may easily have been misled.
We regret the necessity that compels a new trial of this action. The land in dispute is of little value, and the costs have already become very onerous; but, as we view it, the trial judge submitted facts to the jury not warranted by the pleadings or the law applicable to the case.
The judgment and order are reversed and a new trial granted, with costs to the appellant to abide the event
All concurred; FOLLETT, J., not sitting.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.