
    *Scipio Pernam versus William Wead.
    [f a judgment creditor extends his execution on a part of his debtor’s land, so as to leave him no passage from the remainder of the land to the highway, the law gives him a way of necessity over the land extended upon.
    This was an action of trespass upon the case, brought by S. Pernam against W. Wead, for a disturbance in the enjoyment of a way, by stopping il
    
      The facts, as they were agreed by the parties, were in substance — That, on the 13th day of March, 1789, the plaintiff was seised and possessed, in his own right, in fee simple, of a lot of land in Newburyport, with a dwelling-house thereon, bounded on one side by a street or public highway; and that he being so seised, one Edmund Sawyer, on that day, caused an execution which he then held against the present plaintiff to be extended, in due form of law, on that part of the land adjoining the street: that the defendant has all the right and title of the said Sawyer, in virtue of the extent of said execution, and no other: that the same was never redeemed : that the plaintiff is still seised and possessed of the residue of the said lot, on which residue his dwelling-house stands : that before the levying and extending the said execution, and ever since, he had, and now hath, no other way from his dwelling-house and close, described in the declaration, to the street, or highway, and back, but through and over the premises so extended upon by the said execution, without trespassing upon the lands of others, in which he has no right; and that the defendant has obstructed and prevented the plaintiff from passing and repassing through and over the premises so extended upon, by erecting a fence in front, and another in the rear thereof.
    It was agreed that if, upon these facts, the Court should be of opinion that the plaintiff, since the extent of the said execution, has had a right of way by necessity to go from his dwelling-house and close to the street, and back, through and over the premises so extended upon, by the mere operation of law, notwithstanding such extent, the defendant should be defaulted, and the plaintiff’s damages assessed by the jury; but otherwise, judgment should be entered that the defendant is not guilty.
    
      Putnam, for the plaintiff,
    contended that he had a right of way by necessity, to and from his dwelling-house and land, through * and over the front which his creditor had taken [ * 204 ] by execution; and he cited the following authorities.
    If a man hath four closes, and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold,—although he reserved not any way, yet he shall have it as reserved unto him by the law. 
    
    So where there are three parcels of land, and a way of necessity from the first, to and through the second, to the third: J. S. bought all, then sold the two first by deed — and the jury found there was no other way to the third but over the other two parcels; and it was resolved that J. S. had a way of necessity, notwith standing his grant; and he might take a convenient way withoat consent of the other, and the law would settle the question of sufficiency or conveniency. 
    
    So where the ancestor died seised of a mill and land adjoining, which descended to two sisters — partition was made; one has the rr /II and the other the land. She who has the mill shall have a way over the land reserved to her as a new way, although it was extinguished by the unity of possession of the ancestor. 
    
    The same law extends to other rights of necessity, as a gutter passing through adjoining tenements. 
    
    It must be a right of necessity, (as in the case at bar,) and not merely of convenience. And it would be a good plea “ that the plaintiff had another way.” 
    
    
      Putnam also referred to the following authorities, viz., Lutw. 1448.—Popham, 167.—Palmer, 446. — 6 Mod. 3, 4.
    
      Little,
    
    on the other side, contended that, by the extent of the execution, all the estate of Pernam in the premises extended upon was transferred to the creditor on the execution, and this without the reservation of any such easement or encumbrance as [ * 205 ] is now claimed by the plaintiff. ' It was an injustice * to the creditor, who might not know the particular situation of the land, as the debtor certainly did. If the debtor intended to set up this claim, he should have made it known to the appraisers, who would have made a deduction from the estimated value of the land, on account of this encumbrance.
    But the statute  directing the method for laying out highways has made abundant provision for the plaintiff by empowering the selectmen of the town to lay out a way for his use, for which the defendant will receive a suitable recompense. This provision of the statute is nugatory, if the party has this right at common law. The intention of the legislature, that the owner of the soil should have satisfaction for the easement over his land, will be entirely frustrated.
    A way of necessity is nothing else but a way by grant. It derives its origin from a grant.  In this case, there is no pretence of a grant.
    
      Andrews, in reply.
    If a judgment creditor succeeds to all the debtor’s title, the grantee equally succeeds to that of the grantor; so that the authority from 2 Sid. applies equally to the case at bar But our case is stronger: there, the way was necessary for the cultivation or occupation of land only; this is the only means the plaintiff has of getting out of his dwelling-house.
    As to the statute provisions which have been read, it is a sufficient answer that, upon the defendant’s position, immediately upon thq execution’s being extended, Pernam, was shut up in his house and, unless he had this right of way, he could not go, even to make an application to the selectmen, without committing a trespass. We contend that this statute does not take away any rights existing at common law. Probably the intention was to provide for persons who are desirous of a more convenient way than they may already possess, and are willing to make a compensation for it.
    Upon reading the whole of the note in Saunders, the authority seems, to say the least of it, as favorable to the plaintiff as to the defendant.
    
      
      
        Clark vs. Cogge, Cro. Jac. 170. — Howton vs. Frearson, 8 Term Rep. 50, S. P.
    
    
      
       2 Sid. 39, 111, 112.
    
    
      
      
        Liber. Ass. 21 Ed. 3,1. — Bro. Abr. tit. Extinguishment, Pl. 15.
    
    
      
       11 Hen. 7, 25.
    
    
      
      
        Com. Dig. tit. Action on the case for disturbance, B. 2
    
    
      
       February 27, 1787.
    
    
      
       1 Saun. 323, a, Williams's note, 6.
    
   * Parker, J.

The plaintiff has brought his action for [ * 206 ] an interruption in a way from his dwelling-house and curtilage to some public highway. It is agreed that he had no way by which he could have communication with the world, unless over this land, or by trespassing on others. The question, on this state of the case, is, whether the law gives him a way as a way of necessity. I am of opinion that it does. The reason of the thing is plain, and the cases cited are clearly in point. If, when a man voluntarily, for valuable consideration, grants land; having other land in the rear, he be entitled to thisJ way of necessity, although he might have secured it by reservation in his grant.— surely, when his land is taken from him without his consent, by force of law, he is not less entitled to such a privilege ; more especially when it is considered that the judgment creditor may elect where to take his land in satisfaction of his execution. He might have taken the land in the rear with the house, or he might have left a passage-way for the debtor, and had more land set off to him in lieu of that so left. He therefore must be considered as having chosen to take the whole front of the debtor’s land, knowing at the time that he shut him from all communication with the private or public ways in the town. Under these circumstances, he certainly ought not to be privileged beyond a man who has made a fair purchase, dealing, upon equal 'terms, with a grantor.

The only objection made on the part of the defendant arises from the provisions of the statute by which the plaintiff might have procured a way to be laid out by the selectmen. But I cannot consider this statute as divesting a common-law right, unless it were specially so declared by the words of the statute. I am satisfied that the plaintiff has been legally entitled to a way of necessity from the time the execution was extended.

Sewall and Sedgwick, justices, concurred.

Defendant defaulted. 
      
      
        Taylor vs. Townsend, 8 Mass. Rep. 411.
     