
    Phebe Burlew, Appellant, v. John L. Hunter, Respondent.
    
      Ejectment — right of way by necessity, when it arises — the right thereto where access exists over navigable water—such a defense must be pleaded — a finding that it exists does not justify a general verdict.
    
    A grantee of lands, accessible only over the lands of his grantor, has a right of way hy necessity over the latter’s land, which, if not designated by the grantor, may be selected hy the grantee.
    
      Such a right only arises where its existence is essential to the enjoyment of the land conveyed, and cannot rest on convenience.
    
      Qucere, whether a grantee acquires a right of way by necessity over the lands of his grantor to a highway, where access to the land conveyed to him may be bad over the waters of a navigable lake.
    Defenses interposed in an action of ejectment to the effect that the defendant has a right of way by prescription or necessity over the locus in quo, or that the latter is a public highway, are affirmative in their nature, and must be pleaded in order to be available.
    The fact that the jury find in favor of the defendant, on any one of such defenses, does not entitle him to a general verdict, but only to a verdict that he has an easement in the locus in quo.
    
    Appeal by the plaintiff, Pliebe Burlew, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Cayuga on the 27th day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of May, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was commenced March 29, 1895, and the trial was had May 2, 1898. The complaint in this action is in ejectment, to recover a small tract of land, situate in said county, lying between the right of way of the Lehigh Valley Railroad Company and Owasco lake. The piece of land is irregular in form, and upon it the defendant has a cottage, boathouse, barn and outbuildings, which he occupies during the summer. His only practicable way of egress from his buildings by land is southerly along the westerly shore of the lake, and over a farm crossing, which the plaintiff claims belongs to her. The farm of the plaintiff, before the construction of the railroad, extended to the lake shore, including the lands in controversy; as actually occupied since the building of the railroad, it has not embraced the tract now claimed by- defendant. The description of the lands claimed by the plaintiff in her complaint comprises all that occupied by the defendant, but this contention was not asserted upon the trial. The answer of the defendant not only contains a general denial, but affirmatively asserts title to the land occupied by him under the following description: “ Beginning in the east line of the lands of the Southern Central Railroad Company on said lot, where the center line of a division fence mark the boundary line between the lands of Peter V. Wyckoff, now deceased, and Thomas Plunkett, in April, 1875, which point is in or near the center of a brook flowing easterly into Owasco lake; running from thence southerly along the east line of the lands of said railroad company to the waters of Owasco lake, at high-water mark; thence northerly along the waters of said Owasco lake, at high-water mark, to the northeast corner of said lands, formerly owned by said Peter V. Wyckoff; thence westerly along the said line, between the lands of Peter V. Wyckoff and Thomas Plunkett, to the jAaee of beginning. Which said lands include all the lands and premises which are south of the lands of Thomas Plunkett and east of the right of way of the Lehigh Valley Railroad Company, and west of Owasco lake, and extending as far south as the farm crossing over the tracks of the said Lehigh Valley railroad right of way.”
    It is further alleged in the answer that defendant derived title thereto by a deed from Alida M. Cooper and Orrin H. Burdick, bearing date June 8, 1891. Burdick acquired title by purchase from Peter V. Wyckoff. The deed was executed and delivered April 1, 1875, and he immediately went into possession under this conveyance. Alida Cooper’s title came from Burdick. The possession by Burdick, Cooper and defendant was continuous. The plaintiff acquired title through Wyckoff by a mortgage foreclosure sale March 1, 1887. The facts ¡Dertaining to the record title were uncontroverted.
    
      Frank F. Cady, for the appellant.
    
      Frank S. Coburn, for the respondent.
   Spring, J.:

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, hut 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, Bur-dick, 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 Wash. Real Prop. [3d ed.] 306.)

0 wasco 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 lie 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.

W e 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.  