PRIVATE WAYS.
A private way is the right of passage over another man's land. It
may be established and discontinued in the same manner as a public
way, and it may also arise from necessity. A way of necessity is
where a person sells land to another which is wholly surrounded by
his own land, or which cannot be reached from the public highways or
from the land of the purchaser. In such case the purchaser is unable
to reach his land at all unless he can go over some of the
surrounding estates; and inasmuch as he cannot go over the premises
of those who are strangers to him, in law, and inasmuch as public
policy and simple justice call for a passage-way to his land, for
his use in the care and cultivation of it, the law gives him a way
of necessity over his grantor's land, which runs with his land, as
appurtenant thereto, so long as the necessity exists, even if
nothing is said in the deed about a right of way, because it is
presumed that when the grantor sells the land he intends to convey
with it a right of way, without which it could not be used and
enjoyed; but when the necessity ceases, the right ceases also.[86] In
the absence of contract, it belongs to the owner of a private way to
keep it in repair,[87] and for this purpose he may enter upon the way
and do whatever is necessary to make it safe and convenient; but if
in so doing he removes soil and stones which are not needed on the
way, such surplus material belongs to the owner of the land over
which the way passes.[88] If a defined and designated way becomes
impassable for want of repair or by natural causes, the owner of the
way has not the right of a traveller on a public road to go outside
the limits of the way in order to pass from one point to another.[89]
But if the owner of the land obstructs the way, a person entitled to
use it may, without liability, enter upon and go over adjoining land
of the same owner, provided he does no unnecessary damage.[90] The
reason for this distinction in the law between a public and a
private way is that in the case of a private way the owner of the
way, who alone has the right to its use, is bound to keep it in
repair, whereas in the case of a public way the traveller is under
no obligation to keep it in passable condition. A private way once
established cannot be re-located except with the consent of both the
owner of the land and of the way; but if both are agreed, the old
way may be discontinued and re-located in another place.[91] The
owner of the soil of a private way may, the same as the owner of the
fee in a highway, make any and all uses thereof to which the land
can be applied.[92] In the absence of agreement to the contrary, he
may lawfully and without liability cover such way with a building or
other structure, if he leaves a space so wide, high, and light that
the way is substantially as convenient as before for the purpose for
which it was established.[93] And so, in the absence of agreement, he
may maintain such fences across the way as are necessary to enable
him to use his land for agricultural purposes, but he must provide
suitable bars or gates for the use and convenience of the owner of
the way. He is not required to leave it as an open way, nor to
provide swing gates, if a reasonably convenient mode of passage is
furnished; and if the owner of the way or his agents leave the bars
or gates open, and in consequence thereof damage is done by animals,
he is liable to respond in damages.[94] "The law of the road" applies
as well to private as to public ways, as the object of the law is to
prescribe a rule of conduct for the convenience and safety of those
who may have occasion to travel, and actually do travel, with
carriages on a place adapted to and fitted and actually used for
that purpose.[95] The description of a way as a "bridle-road" does
not confine the right of way to a particular class of animals or
special mode of use, but it may be used for any of the ordinary
purposes of a private road.[96]
[86] 14 Mass. 49; 2 Met. 457; 14 Gray, 126.
[87] 12 Mass. 65.
[88] 10 Gray, 65.
[89] Wash, on Ease. *196.
[90] 2 Allen, 543.
[91] 5 Gray, 409; 14 Gray, 473.
[92] Wash, on Ease. *196.
[93] 2 Met. 457.
[94] 31 N. Y 366; 44 N.H. 539; 4 M. & W. 245.
[95] 23 Pick. 201.
[96] 16 Gray, 175.