
    Mary Russell versus Thomas Jackson 2d.
    Where by a levy on part of a debtor's land, the residue was divided into two parcels, one of which lying north was thereby shut out from the highway, but the other lying northerly, as well as westerly, was bounded on the highway, it was held, that a way reserved in the levy from the land u north of the land extended on, adjoining the same,” was appurtenant to the first parcel only.
    Where a way of necessity to part of a debtor's land results from successive levies on .other parts, the land of the creditor whose levy creates the necessity must be burdened with the easement.
    
      It seems, that the right of locating a way of necessity, belongs to the owner of the land Per Wilde J.
    But if this right belongs to the person entitled to the easement, yet until he has exercised it, the owner of the land may erect buildings, or may alienate part of the land free of incumbrances, provided a space is left on his land sufficient for a convenient way.
    In this action, which was case for the disturbance of an alleged right of way, it was agreed by the parties, that if upon the following statement of facts the Court should be of opinion that the plaintiff could recover, judgment should be rendered in her favor for five dollars and costs ; if otherwise, that she should become nonsuit and the defendant should recover costs. ,
    Thomas Jackson senior was the owner of a parcel of land (represented in the note)  fronting on a highway about 117 feet and running back 300 feet, which was taken in execution by his creditors.
    On the 10th of May, 1813, Samuel Robbins levied on a part n the rear marked A. On the next day Daniel and Charles Jackson, whose estate the defendant represents, levied on a part marked B, fronting on the highway about 66 feet, and on this part stood the house and out-buildings of Thomas Jackson, the judgment debtor. In this levy there was a reservation to the judgment debtor of “ a right of a ten foot way through gates and bars in common with said Daniel and Charles, for the use of going to and returning from the said Thomas’s land lying north of the above described lot, adjoining the same.” On the 17th of the same May, Elizabeth Cooper levied on the remaining front, C, and on the 11th of September following Henry Warren levied on D. On the 30th of August, 1816, Zaccheus Bartlett levied on E and F. ' The remaining small piece, G, was subsequently conveyed by the judgment debtor to N. M. Davis, and by him to those whose estate the defendant represents. That estate was added to in June 1819, by the purchase of a slip eight feet wide adjoining the south westerly side of B, and running the whole length of C and D. The deed of it was given by Warren, who then owned C as well as D, and contained a warranty against all incumbrances. The slip thus purchased, together with two feet of B, was fenced off by the defendant as a way, from the rear until it reached the yard appurtenant to the house of the judgment debtor, and at the end which borders on the street a convenient gate way for carts and carriages has been erected by the defendant. In the parcel marked C there was at the time of Mrs. Cooper’s levy a gate way for carriages 12 feet wide, used by the judgment debtor as the avenue to his barn and the land in the rear. A house has been erected on that parcel, since the levy, about 23 feet westerly of the 8 feet strip before mentioned, and the occupant of this house has erected a gate for carriages, standing side by side with the gate erected by the defendant at the end of the 8 feet strip, and nearly on the same spot where the old gate used by the judgment debtor stood.
    In May 1819, the plaintiff purchased of Bartlett the parcel marked E adjoining her own land marked H, and the deed contains a clause of warranty of a right of way over the land which had been extended on. At the time of the sale Bartlett had no access to the parcel marked E, unless a right of way resulted by virtue of his levy, over some of the land which had been extended on ; and the plaintiff might now lay out a sufficient way from E over her own land to the highway.
    
      L. Shaw and W. Thomas, for the plaintiff,
    cited Clarke v. Cogge, Cro. Jac. 170 ; Beaudely v. Brook, ibid. 189 ; 1 Wms’s Saund. 323, n. 6 ; Morris v. Edginton, 3 Taunt. 24 ; Buckby v. Coles, 5 Taunt. 311.
    
      W. Baylies and Davis, for the defendant,
    cited Com. Dig. Action upon the Case for Disturbance, B, 2 ; ibid. Chimin, D ; 3 Cruise’s Dig. 121 ; Gayetty v. Bethune, 14 Mass. R. 56 ; Pernam v. Weed, 2 Mass. R. 203 ; Taylor v. Townsend, 8 Mass. R. 411 ; Godley v. Frith, Yelv. 159 ; Whatlley v. Tompson, 1 Bos. & Pul. 371.
    
      
       The following plan represents this land, together with a parcel belonging to the plaintiff, marked H, with sufficient accuracy for illustration.
      
        
      
    
   Wilde J.

delivered the opinion of the Court. The plaintiff claims a right of way over the defendant’s land, either by operation of law, as a way of necessity, or by express reservation in the levy of Daniel and Charles Jackson’s execution from whom the defendant derives title.

As to the way reserved, it is a ten feet way, through gates and bars, from the street to the judgment debtor’s land “ north adjoining.” These are the termini-, and the use is expressly limited to the going to and returning from the north adjoining land. As the plaintiff’s lot lies westerly from the defendant’s, it would seem to be excluded from the benefit of this reservation. But the plaintiff’s counsel contend that the words “ north adjoining” are not to receive a literal construction ; that the words north and northerly, when used as words of description, are frequently used indiscriminately ; and that it is impossible to imagine that the use of the way was intended to be limited to the land immediately adjoining thereto, and directly north therefrom. If so, then north must be read northerly, and' as the plaintiff’s lot (part of it at least) lies northerly, as well as westerly, from the defendant’s, it may be considered as entitled to the benefit of the reservation.

This construction might possibly be deemed a reasonable one, if the judgment debtor’s lands, after the levy of this execution, had remained contiguous, so as to have constituted one lot, the way reserved being equally necessary or convenient to the whole. But it appears that by the levy of this execution, and by a previous levy by one Samuel Robbins, the debtor’s land northerly of the defendant’s lot was ■ separated from his land to the westerly, and thus was formed into two distinct lots. From the northerly lot there was no access to the street except by the way reserved ; while the westerly lot extended down to the street; and to this lot the debtor had a convenient and unobstructed access without the aid of the way reserved. Considering these facts, we cannot misconstrue the terms of the reservation. It is impossible to understand them as referring to the westerly lot. From this lot the debtor had an outlet over his own land equally convenient with the way in question, so far as we know ; and probably more so ; because it appears that on this part of the lot, and not on the part taken by the Jacksons, was placed the gate way for carriages, used as an avenue to the barn and land m the rear. We consider therefore the right of way reserved o the debtor, as appurtenant to his northerly close ; and it is very clear that he had no right to a tranverse way to his west erly close. Senhouse v. Christian, 1 T. R. 560. It is also equally clear, that neither the plaintiff, nor the judgment debt- or, is entitled to a way of necessity over any part of the tract taken on execution by Daniel and Charles Jackson. At the time when they extended their execution no necessity existed.* If a necessity was afterwards created by another creditor, the burthen of the easement cannot be charged on their estate, It must fall on the estate of him who created the necessity. It passes as incident to the levy of his execution.

It follows, therefore, that if the plaintiff has a right of way over any part of the defendant’s land, it is over the slip of land by him purchased of Warren, the front part of which he purchased of Cooper. After the levy of the Jacksons’ execution, Mrs. Cooper extended her execution on the whole remaining front part of the debtor’s lot; and his access from the back land of his westerly close to the street was then cut off. A right of way, therefore, was derived to him by operation of law over the land taken by Mrs. Cooper. But the judgment debtor had no right to an arbitrary location of his right of way, without regarding the interest and convenience of the owner of the land. On the contrary, I am of opinion that the right of location was rather vested in Mrs. Cooper. For if one has a right of way over the land of another, which he claims by operation of law, he is bound to use it so as to occasion the least possible injury or inconvenience to the owner of the land. All that a person entitled to such an ease-: ment can reasonably claim, is a convenient way ; and if this is allowed by the owner of the land, he has no cause to complain. To the person entitled to the easement it is immaterial where the way is located, so that he has a convenient way ; but to the owner of the land it may be exceedingly important. But if the judgment debtor had in the first instance the right of locating his way, and he neglected to make his election, the right would then clearly devolve on the owner of the land. Otherwise he might be deprived of the use of his land. He could not erect buildings, or convey a part of it free from the easement without subjecting himself to possible damages ; which would be unreasonable. Mrs. Cooper then had an unquestionable' right to erect buildings, and to alienate the slip of land in question free from the incumbrance of the easement, as was done ; for it is not pretended that thereby the judgment debtor, or the plaintiff who claims under him, was necessarily deprived of the enjoyment of his way. Between the buildings on the Cooper lot and the slip in question there is ample space for a convenient way ; and here the plaintiff is bound to take it, if she is entitled to a way over any part of the Cooper lot; which is denied, and as to which we give no opinion. Against the defendant she has no title ; and according to the agreement of the parties she must become nonsuit. 
      
       A right of way by necessity never can be claimed, where a man can get to his property through his own land, however inconvenient the way through his own land may be. M'Donald v. Lindall, 3 Rawle, 492 ; Holmes v. Goring, 2 Bingh. 76 ; S. C, 9 Moore, 166.
     
      
       See 2 Rollers Abr. 60, Z,pl. 17 ; Farnum v. Platt, 8 Pick. 342 ; Oldfield's case, Noy, 123 ; Horn v. Taylor, Noy, 128 ; Staple v. Heydon, 6 Mod. 3 ; Morris v. Edgington, 3 Taunt. 31.
     