CHAPTER XV.

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.

The Road and the Roadside · 第 15 / 19 章