White v. Hotel Co. , 68 N.H. 38 ( 1894 )

If the plaintiffs have an adequate remedy at law, the objection is not taken and is not considered. The question whether under the grant the defendants have a right to a continuous way around the hotel, is a question depending upon the intention of the parties, to be found upon a consideration of the language of the deed and other competent evidence. As tending to show what the parties meant by the words they used, the relative situation of the hotel and stable, the use made of them, the benefit of a continuous passway to the defendants and the injury caused by it to the plaintiffs, the ease or difficulty of making the connection and the ability or inability of the defendants to make a beneficial use of the entire property granted without the connection, may, among other things, be considered. Gardner v. Webster, 64 N.H. 520.

The grantee of a defined way has the right to do whatever is necessary to make it passable or usable for the purposes named in the grant. Senhouse v. Christian, 1 T.R. 560, 570. He may bridge or fill an impassable ditch across which it extends. Whether the ditch must be bridged or filled may depend upon the relative convenience or inconvenience to the parties of one or the other method. Bean v. Coleman, 44 N.H. 539; Garland v. Furber,47 N.H. 301. If at the date of the deed Mrs. White's stable or other building had extended over the passway, the defendants would have had the right to remove so much of it as was necessary to make the way passable "on foot and with all kinds of teams and vehicles." In this respect there is no distinction between an obstruction caused by a building and one caused by a difference of level or other obstacle.

A stranger reading the deed would never suspect that the ways described would not permit a continuous and uninterrupted passage around the hotel. He could learn only by inspection or other extrinsic information that the level of the east way was twelve feet above that of the north way at the point of their junction. The natural meaning of the language of the deed is inconsistent with the existence of an impassable gulf across the way. It would deceive a grantee ignorant of the lay of the land, and defraud him if the gulf could not be bridged or otherwise made passable. The parties knew the situation. If their intention was that the obstruction should be permanent and irremovable, they naturally would, as they easily might, have expressed such intention. It cannot reasonably be supposed that they would select words apt to describe a continuous and uninterrupted way of passage around the hotel, without mention of or allusion to the then existing impassable barrier, if they understood such passage was to be forever impossible.

The parties might have limited the grant of the north passway by the easterly line of the premises conveyed. Had they done so, the present question would not arise. It would be certain that they did not intend a continuous passway. But by the express terms of the grant, the north way extends to the easterly line (protracted northerly) of the east way. The only apparent purpose of this extension beyond the hotel was to make the two passways coterminous and continuous. So far as appears, the defendants can make no beneficial use of the part of the north passway about twelve feet square, expressly granted and situated east of the east line of the premises conveyed, unless it is in some manner connected with and made passable to and from the east passway. Under the express grant of this part of the way the defendants took by implication whatever rights were reasonably necessary to enable them to enjoy it beneficially. Leonard v. Leonard, 7 Allen 277, 283. The law conclusively presumes it to be the intention of the parties that the grantee shall enjoy beneficially the subject of the grant. Upon this presumption is founded the doctrine that "the grant of a principal thing carries all things necessary to the use and enjoyment of the thing granted which the grantor had power to convey." Tourtellot v. Phelps, 4 Gray 370, 378.

The defendants are entitled to a reasonably convenient connection of the passways, to be made in such a manner as to subject the plaintiffs to no unnecessary inconvenience. In respect to the method of making the connection, the question is similar to that which arises in the case of a grant of an undefined way, as, for example, the right to pass and repass across the grantor's farm. If the parties cannot agree, equity determines the location of the way. Gardner v. Webster, 64 N.H. 520, 522, 523. In the present case the plaintiffs do not claim that the ways can be made continuous in a manner less injurious or more satisfactory to them than that adopted by the defendants.

Bill dismissed.

All concurred.