
    Rowland Brill, Resp’t, v. John Brill, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    
      1. Easement of wat—When land made servient to
    One John Brill, who owned a farm, conveyed to plaintiff's grantors the southern portion thereof, over which he had previously made a road from his dwelling house to the public road. The portion retained for his own occupation had upon it this house, and when this suit was brought belonged to defendant. In the deed conveying the premises to plaintiff's grantor was a reservation to himself, his heirs and assigns forever, a free ingress and egress across the above described premises where the road now is to the house formerly occupied by the said John Brill Held, that the plaintiff’s lands were made servient to the owners of the other parcel of land to the expressed extent and no further.
    2. Same—Right of one owning an easement of wot over land of ANOTHER.
    
      Held, that defendant’s sole right was an easement of way which secured to him the right to use the sur ace of the soil for the purpose of passing and re-passing, and the incidental right of properly fitting the surface for that use That the defendant was bound to the exercise oi duv and reasonable care by-his own methods to prevent his cattle or other animals-from trespassing on the plaintiff’s premises
    3 Same—Right of the owner of servient land—Obligation of.
    
      Held, that the plaintiff, as owner of the soil, had all the rights and benefits of ownership consistent with such an easement. That he was under no obligation to keep up fences along the sides of the road, nor in any manner required to abstain from occupying his lands in common wiuout division fences and with free and unobstructed passage from one side to the other.
    4. Same—Not necessary that it be enclosed.
    
      Held, that an enclosed road was not an actual or direct necessity to the full enjoyment of the privilege reserved, and cannot be implied as incident thereto.
    5. Same—Duty of owner of dominant estate to keep up line FENCE.
    The duty of the defendant to keep upon his own lands such cattle and other animals as he might possess, and to keep up and maintain his own portion of t.ie line fence of which the gate in question was a part, was mitigated only by his privilege to have a reasonably convenient passage upon the road over plaintiff's land.
    6 Same—Right of servient owner to have gates at ends of way a QUESTION OF FACT
    The right of the plaintiff to have gates at the two ends of the way presented a question of fact as to whether they unnecessarily interfered with the defendant’s use of it.
    Appeal from a judgment of the supreme court, general term, second department, reversing a judgment in favor of the plaintiff entered at special term and ordering a new trial.
    
      Homer A. Nelson, for app’lt; O. D. M. Baker, for resp’t.
    
      
       Affirming 37 Hun, 644, mem.
      
    
   Danforth, J.

It appeared in evidence that the plaintiff’s farm, including the locus in quo, and the defendant’s farm were contiguous. Originally they, with the other laud, formed one farm, which belonged to John Brill, Sr., the grandfather of the parties, and he on the 51h of April, 1819, conveyed to the plaintiff’s grantor what in a general way may be described as the south portion thereof, but which in the deed was described by metes and bounds; he retained the rest in his own occupation and upon it was his house. That portion now belongs to the defendant, and, so far as appears, the original farm was entirely surrounded by the lands of other persons, except on the northwest side, where the portion conveyed by him abutted on what was called the “ Bough quag road.”- He had made a road from his dwelling house on his own land out to that road. It passed through the premises conveyed as above-mentioned to the plaintiff’s grantor, and in his conveyance was a reservation * ‘ to himself, his heirs and assigns forever, a free ingress and egress across the above-described premises, where the road now is, to the house formerly occupied by the said John Brill.” The questions in this case are to be answered according to the true construction of the words just quoted

Both parties are actors. Each seeks affirmative relief The plaintiff in his complaint, not denying to the defendant the use of the farm road, alleges that at each end of it, the north and south ends, gates have hitherto been uniformly kept up, at the south end a swinging gate maintained by the plaintiff, but opened and closed by those using the road-in passing to and from the defendant’s farm,” until lately, when the defendant habitually leaves it open, and when-requested by the plaintiff to close it, refuses to do so and. declares that he will continue to leave it open whenever he-passes or repasses; that the gate at the north end has heretofore formed a portion of the line fence between the parties and been maintained by the defendant and his prede- • cessors in title, and after use closed by them; but the defendant now deals with it as with the southerly gate ancL refuses either to maintain or close it; that damage results from these omissions of duty, and the plaintiff asks that the defendant by the judgment of the court “be restrained and enjoined from using said route across plaintiff’s farm unless-he shall properly and securely close the said gates immediately after passing them.” A preliminary injunction to that effect was granted. The defendant answered: concedes-the ownership and occupation of the lands as described in the complaint, alleges that the plaintiff has heretofore-maintained fences along the farm road “from the highway to the defendant’s farm,” and claims that his predecessors-were, and that he is “ entitled to the possession of said road and to the use of the same, free from the obstruction of gates or bars between, his said farm and said highway;” admits that he has left the gates open and claims the right .to do so. He therefore asks for judgment directing and commanding the plaintiff to maintain the fences along either side of said road from said highway to defendant’s said farm.”

At special term it was adjudged:

First. That the defendant has a right of way across the plaintiff’s farm, upon the route heretofore used by the owners of defendant’s adjoining farm.

Second. That said right of way is subject to the right of the plaintiff to maintain a swinging gate across said way, at the southerly end thereof, and along the highway.

Third. That the use of said right of way, by defendant- and those acting under him, is subject to the right of the plaintiff to have the defendant and such persons properly close and secure such gate after he or they shall open the-same to pass too or from said farm of defendant.

Fount That said right of way is not subject to the right of the plaintiff to have the defendant, or the owner or occupant of defendant's said farm, maintain a gate, bars- or other obstruction to the free passage of cattle or stock across the said way, on the line between plaintiff’s and defendant’s farm.

Fifth. That the defendant has no right to pasture the said way, or to allow cattle, hogs, sheep, horses or other stock, or poultry from his farm to run upon the same.

Sixth. That the defendant has no right to allow any such animals or poultry to be upon said way, except when the same are being driven to or from his said farm.

Seventh. That the preliminary injunction herein be, and the same hereby is, continued and made permanent, so far as it relates to thé defendant, and those claiming under him, passing and using the said southerly gate.

Eighth. That the plaintiff is legally obliged to, and shall, maintain fences on both sides of said way through his said farm.

No appeal to the general term was taken by the defendant from any part of this judgment, but the plaintiff appealed from the “parts or paragraphs” thereof, numbered four and eight respectively. The general term sustained the appeal, reversed the judgment upon questions of law and fact, and ordered a new trial. The defendant thereupon gave the usual stipulation and appealed to this court.

The right of the plaintiff to have gates at the two ends of the way presented a question of fact as to whether they unnecessarily interfered with the defendant’s use of it, and in its disposition, as also upon the other questions in the case, we concur with the general term.

The right to the southerly gate was settled at special term and its decision acquiesced in. As to the northerly gate there seems to be upon this appeal no real contention against it. The duty of the defendant to keep upon his own lands such cattle and other animals as he may possess, and to keep up and maintain his own portion of the line fence, of which the gate m question is a part, is mitigated only by his privilege to have a reasonably convenient, passage upon the road over the plaintiff’s land. In regard to it the rights of the two parties are correlative and both are protected when the gate is opened only for necessary use and closed when passage through it in either direction is affected.

Second, as to the fences; the conveyance to the plaintiff included not only the land on each side of the road, but the road itself, the grantor reserving only “a free ingress- and egress across the premises where the road now is The plaintiff’s lands were thus made servient to the con venience and pleasure of the owners of the other parcel of land to the expressed extent, and no further. From such words nothing more can be implied. The plaintiff was, therefore, under no obligation to keep up fences along the-sides of the road, nor in any manner required to abstain from occupying his lands m common, without division., fences and with free and unobstructed passage from one side to the other. Nothing was secured to his grantor by the reservation, but a right of way or private passage over the land at a particular place and as incident thereto whatever might be necessary for its reasonable and proper enjoyment; subject to that the right of dominion and use was in the plaintiff, to the exclusion of all others.

No case has been referred to by counsel, nor do we find any which imposes a duty upon the owner of lands so burthened, to do any positive act, as in this instance erect or maintain a fence for the benefit of the owner of the dominant estate. It is enough that he abstains from interfering with the other’s right. The right reserved is, “to have a free ingress and egress across the premises ” where the road now is.

The argument of the learned counsel for me appellant is that unless the road is fenced out, “cattle and other farm stock could not be driven, either on or off the defendant’s farm without trespassing on the plaintiff’s land.” At the time of the grant the lands were devoted to agriculture and the way within the defined limits was no doubt intended for any useful or proper purpose for which the land of the grantor might be used. His cattle and other farm stock, it may be conceded, should be permitted to pass over it. But the plaintiff was no more bound to define by fences the course they should take, than he was to prepare the surface of the way for their safe travel. The performance of neither act was imposed upon him. The defendant’s sole right was a right of passage. His grantor secured to him an easement of way, that is the right to use the surface of the soil for the purpose of passing and re-passing, and the incidental right of property fitting the surface for that use He could lawfully claim nothing more. The plaintiff as owner of the soil, has all the lights and benefits of ownership consistent with such an easement (Atkins v. Bordman, 2 Metc. 457; Bakeman v. Talbot, 31 N. Y , 371), and among others must be the right to have his lands fenced or unfenced at his pleasure. In the absence of fences his horses and cattle must not obstruct the defendant’s way, and the defendant is bound to the exercise of due and reasonable care by his own methods to prevent his cattle or other animals from trespassing on the plaintiff’s premises. An enclosed road might be a convenience, but its creation is not imposed upon the plaintiff by the terms of the grant; it is not an actual or direct necessity to the full enjoyment of the privilege reserved, and it cannot be implied as incident thereto.

We think the general term properly disposed of the questions presented in this action, whether of fact or law, and that the judgment as it now stands properly defines the rights of the parties, so far as they are in issue. It should, therefore, be affirmed, and in pursuance of the stipulation the plaintiff should have judgment absolute, with costs in all courts.

All concur.  