
    New York Carbonic Acid Gas Company, Respondent, v. The Geysers Natural Carbonic Acid Gas Company, Appellant.
    
      Bight of way by necessity — a deed by the original grantor of the land over which it' existed, made subject to such right of way, construed — when the right of way ceases to exist.
    
    Where an owner of land conveys a portion thereof having no outlet to the highway, the grantee will take with his deed a right of way by necessity across the grantor’s unsold land.
    Where the grantor subsequently conveys his remaining land, including the strip over which the right of way exists, by a warranty deed reciting that it is subject to such right of way, such recital will be construed as intended to protect the grantor against liability upon the covenants contained in the deed, and not as intended to reserve to the grantor any interest in the premises or to enlarge the existing rights of the owners of the right of way by hecessit3r.
    
      8eruble, that even if the deed of the grantor’s remaining lands clearly expressed an intention to confer additional rights on the owners of the right of way, such owners could not maintain an action under the deed, as the grantor was _ under no moral or legal obligation to enlarge the rights of the owners of the right of way.
    A right of way by necessity will continua only as long as the necessity therefor exists. Consequently, where the grantee, by the purchase of an adjoining piece of land, secures access to the property over his own lands, the right of way will cease,
    Smith and Fursman, jj., dissented.
    Appeal by the defendant, The Geysers Natural Carbonic Acid Gas Company, from a final judgment of the Supreme- Court in' favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 14th day of August, 1901, upon the decision of the court, rendered after a trial before the court without a jury at the Saratoga Trial Term, awarding the plaintiff a right of way across the lands of the defendant and fixing its location, with notice of an intention to bring np for review upon such appeal an order granting the plaintiff an extra allowance of $500.
    
      James W. Yerbeck, for the appellant.
    
      Edgar T. Brackett and Jea/nie V. Minor, for the respondent.
   Kellogg, J.:

Whether or not the plaintiff, when this action was commenced, was the owner of a right of way ” across the defendant’s premises is, as I view it, the serious question in this case; and whether the plaintiff then owned such right of way depends upon the proper construction of the deed of Wiswall to Pettee, dated January 7, 1893. It seems that Wiswall deeded to the Hathorns, in 1889, a small piece of land without any outlet to the highway; that the Hathorns took with this deed a right of way ” by necessity is not questioned by any; that this right of way by necessity was over the “ broken road ” and across Wiswall’s unsold land lying between the broken road ” and the land sold to the Hathorns is not disputed and does not admit of dispute. This deed was executed in 1889. Thereafter, so long as the Hathorns owned the property, they owned this right of way by necessity, for the necessity never ceased to exist while the property was owned by them. They sold it in 1896 to this plaintiff.

In 1893 (January seventh) Wiswall conveyed to Pettee and others all his remaining lands. Those lands included the “ broken road ” and the strip lying between the broken road ” and the land sold to Hathorn. This deed of 1893 to Pettee and others has covenants of warranty of title and peaceable possession covering every portion of the land sold. The deed has this clause : “ Subject, also, to a right of way to Emily H. Hathorn and Frank H. Hathorn, their heirs and assigns, etc., over the broken road as it now exists to and * from the lands conveyed to them by .said Wiswall, by deed dated October 12, 1889.” In view of the fact that this was identical with the right of way which the Hathorns took by necessity with their deed of 1889, and in view of the other fact that Wis-wall was then making a deed with covenants of warranty to Pettee of lands upon which this right of way existed, the language here used would seem to be apt and appropriate to save the grantor Wiswall from any liability upon his warranty in respect to that right of way. If this clause had been left out,- clearly an action for breach of warranty might have been maintained by the grantees. I discover in'this no intention on the part of the grantor to enlarge the existing rights of the Hathorns, or to compel on the part of these grantees a recognition of any other right of way than that which the Hathorns already possessed. Viewed in this light, the intention seems clear and reasonable and the language used is appropriate language in which to express such intention. That the grantor Wiswall so understood it is apparent from the fact that subsequently in 1896 he undertook to convey to the Hathorns by deed this same right of way. This deed of 1896 was wholly ineffectual, for it is-apparent that after the deed to Pettee. in 1893, Wiswall had no freehold interest to convey. The clause referred to, inserted in the Pettee deed, is in no sense a reservation of anything to the grantor. It is not a conveyance with an exception of anything. It conveyed the entire interest of Wiswall “subject” to the right of way possessed by the Hathorns. Certainly what Pettee did not get the Hathorns got, and what the Hathorns did not get Pettee got. By this deed Wiswall divested himself of the entire freehold; he had thereafter nothing to convey. The deed must be taken as it reads so far as Wiswall is concerned, and, so far as the Hathorns are concerned, must be read in the light of prior grants and the right of way by necessity thereto attaching. I do not see how the Hathorns can claim to have taken anything under this clause. It was simply a recognition of an existing right confirmed in them by -their deed from Wiswall in 1889, a right of way by necessity.

The Hathorns must resort to this deed, and so must the plaintiff,, for any title to a right of way other - than the way necessity brings them. To. construe this deed to Pettee otherwise than as a recognition of the right of way by necessity then possessed by the Hathorns, and the clause referred to other than as a prudential clause to protect the grantor against his warranty to Pettee, would do violence to the apparent intention of the parties read' in the light of existing facts and the language used.

Under the principle of Lawrence v. Fox (20 N. Y. 268), it has been held that a stranger to the contracting parties may in a proper case take a benefit though not a party or privy to a party to the transaction. Such a case is Hay v. Knauth (36 App. Div. 612), but it must appear that there was a legal or grave moral obligation resting upon the promisee toward such stranger at the time of the transaction. The rule in such cases is stated in Durnherr v. Rau (135 N. Y. 222). It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for his benefit, or at least such benefit must be the direct result of performance and so within the contemplation of the parties; and in addition the grantor must have adegal interest that the covenant be performed in f mor of the party claiming performa/nceL In this case, even if we could reasonably interpret this clause in the Pettee deed as intending to enlarge the rights or benefits of the Hathorns over what they then possessed, there is no obligation, moral or legal, shown to exist in Wiswall to do so. The grantor had no legal interest in the performance of this implied covenant. The Hathorns had taken all they had bargained for by their deed of 1889. There was no obligation resting on Wiswall to give them more. That being the case, the Hathorns could not resort to the Pettee deed for any new or enlarged right even if the deed clearly expressed an intention to give them any new or enlarged right.

As to the right of way by necessity, which the Hathorns took with their deed of 1889, this continued in them and in their grantees until the necessity no longer existed. It seems this Hathorn piece was cut off from access to the highway by the so-called Shouts property. The plaintiff, long prior to the commencement of this action, purchased the Shouts property and secured access to the highway over its own lands. The Hathorn property and the Shouts property joined, and thereafter the necessity for crossing the lands of defendant and along the broken road ceased to exist, and the right to so cross vanished with the necessity. In Palmer v. Palmer (150 N. Y. 147) the court says: “ A right of way of necessity over the lands of a grantor in favor of a grantee, and those subsequently claiming under him, is not, however, a perpetual right of way, but continues,only so long as the necessity exists.”

I am of opinion, therefore, that the plaintiff at the time of com-' mencing this action was not the owner of any right of way across the lands of defendant, or along the broken road, as that road is also privately owned by defendant. This was obviously the opinion of the plaintiff also from 1896 to 1901, during which time it leased from defendant the. right it now seeks to- take with the aid of a court of equity.

The judgment should be reversed, a new. trial granted, with costs to appellant to abide the event.

All concurred, except Smith and Fuesman, JJ., dissenting.

Judgment reversed and a new trial granted, with costs, to appellant to abide the event.  