Gunson v. Healy ( 1882 )

Mr. Jnstice Sterrett

delivered the opinion of the Court, October 2d 1882.

The subject of complaint in the first specification is the refusal of the court to charge, as requested in defendant’s second point: “ That the right of way in dispute is appurtenant to the land of Thomas Gunson, and he and all persons, using his land with his permission, have a right to pass and repass to and from said premises over and upon said right of way.”

This proposition fairly presents the controlling question in the case; and, in view of the uncontradicted evidence on which it is based, we are clearly of opinion it should have been affirmed. The right of way is undoubtedly appurtenant to Gunson’s land; its use is not in any manner qualified or restricted, and hence it follows that he and those who, by his permission, use the land for any legitimate purpose have a right to pass and repass over the road.

The two adjoining tracts, now owned respectively by Healy, the defendant in error, and Gunson, formerly belonged to Daniel Hunter, who in 1829 sold and conveyed the Gunson tract, and in connection therewith granted and confirmed unto his vendee, “ his heirs and assigns the free use and privilege of a road one perch and a half wide in the clear,” from the Hopewell road across his own land to that of his vendee, “ to remain an open road forever.” The road as located in the grant w7as not used, but by common consent another more convenient to the servient tenement was substituted and thenceforth enjoyed by the owners and occupiers of the dominant tenement. The change of location thus assented to was long afterwards recognized and ratified by a written agreement between Gunson and Healy, executed in 1864. The learned judge substantially charged, as requested by defendants, that the agreement of 1864, simply changed the location of the road granted by Hunter, and that “ the extent of the right and everything pertaining to it (except location) is to be gathered from the terms of the grant in the Hunter deed.” Recurring to it we find the grant was the free use and privilege of an open road forever. If there was any doubt as to the nature or extent of the grant the well-settled rule would require it to be taken most strongly against the grantor; but there is no ambiguity about it. On the contrary, it is clear and explicit, and instead of restricting or in any way limiting the use, it is declared to be free and an open road forever. It needs no citation of authority to show that such a right of way, appendant or annexed to an estate, may be used and enjoyed by those who own or lawfully occupy any part of the dominant tenement for ■ any purpose to which it may from time to time be legitimately applied. Only those who may be properly regarded as trespassers on the dominant tenement can be excluded.

It follows from what has been said, that the second, fourth, fifth and sixth assignments are also sustained.

Judgment reversed and a venire facias de novo awarded.