
    John H. Screven vs. John W. Gregorie.
    Right of way claimed by necessity. The evidence showed that though the way was a great convenience to the plaintiff, there was no actual necessity for it, as he had another way: — Nonsuit ordered on circuit, which the Court of Appeals refused to set aside.
    BEFORE WARDLAW, J., AT BEAUFORT FALL TERM, 1854,
    The report of his Honor, the presiding Judge, 'is as follows:
    “ Case for obstruction of a private way.
    “ The plaintiff alleged a right of way through the defendant’s plantation called ‘ Richfield,’ from the plaintiff’s plantation called ‘ Castlehill,’ to a tract of pine land owned by the plaintiff, and by him considered as a necessary appurtenance of ‘ Castlehill.’
    “ The case shown by the evidence was as follows:
    “ Public highways cross at Pocataligo. Castlehill lies in the angle between the Northern and the Eastern roads : Rich-field’ lies west of the Northern end of ‘ Castlehill,’ and is separated from it by the northern road : the plaintiff’s tract of pine land lies west of ‘ Richfield ;’ a corner of it is touched by the western road, and a fork of that road passes through it. A gate from ‘Richfield’ opens upon the northern road, opposite to the upper end of ‘ Castlehill,’ and opposite to the entrance of a much travelled path, which leads from the union road, east of ‘ Castlehill,’ into the northern road. Through this gate a way passes into, and through ‘ Richfield,’ through the plaintiff’s pine land, and across the fork of the public road therein, and through other lands into the western road, and toward McPher-sonville, cutting off an angle which is made by going dorvn the northern road to Pocataligo, and thence up the western road to the point where this way meets the latter road, and so shortening the distance from the gate to that point by two or three miles. The plaintiff's northern avenue, leading from the northern road to the mansion at ‘ Castlehill,’ is half a mile south of the gate ; his southern avenue, another half mile more to the south. The distance from the northern avenue to the pine land, through ‘.Richfield,’ is one and a half mile, or more, less than from the southern avenue by the public roads through Pocataligo — the former being the better way in dry weather, and the latter in wet. ‘ Castlehill’ has very little timber, and the most convenient supply for it may be drawn from that part of the pine land which is penetrated by the way, through ‘Richfield.’
    “ Forty years ago, the way through ‘Richfield’ was open and well trodden. ‘ Castlehill,’ ‘Richfield,’ and the pine land then belonged to different owners. Soon afterwards they were all acquired and occupied by Cien. Cuthbert, in whom there was unity of possessions until 1826, when he died. The three tracts were then held in severalty, by three of his sons until 1829, when they were again united in Col. James Cuthbert, who held them until his death, in 1838, and in his executors, who held them until the year 1844. These executors sold the tracts separately in 1844; and after some intermediate conveyances, they were again, in 1844, united in James Cuthbert, Junior, who held also a plantation, adjoining ‘Richfield,’ called Bethel. Before 1849, James Cuthbert, Jr., sold 'to Elliot, Bethel and an undivided interest in the pine land — the latter tract being in the whole 800 acres or more. A deed elated Dec. 13, 1849, made by James Cuthbert, Jun., in consideration of $18,000, conveyed to the plaintiff ‘Castlehill,” and an undivided moiety of the pine-land, without mention of the intervening way, and without any words showing a connexion between the two tracts. — In 1850, at the request of James Cuthbert, Jun., a surveyor made partition of the pine land so as to annex about 100 acres of it to ‘ Richfield,’ and to divide the remainder between Elliott and the plaintiff; assigning to the plaintiff by direction of James Cuthbert, Jun.; that portion which is nearer to ‘ Castlehill’.by the way through ‘ Richfield,’ but more remote by the public roads through Poeataligo. James Cuthbert, Junior, - died in 1852 : his executor sold and conveyed to the defendant, ‘Richfield’ and its appurtenances, without reservation: and in 1853, .the defendant obstructed the way.
    “ Until the obstruction, the way in question was at pleasure used for the convenience of al the adjoining plantations ; — for ‘ Castlehill’ and ‘ Richfield,’ from a time [beyond which the memory of witnesses does not extend; and for Bethel, from the time that James Cuthbert, Jun., became owner. — It was travelled by all persons who desired to go through — mainly by persons going from the Union road to McPhersonville; some obtained permission, others did not, but before the sale to the plaintiff, the expression of James Cuthbert, Jun., had been that he was willing for [his friends to use the way, so long as they would accept it as a courtesy and set up no right. The plaintiff used the way without asking, and with the knowledge of James Cuthbert, Jun., and of his executor. There was a claim of right on his part, and an acquiescence on theirs, but no conveyance or agreement on the subject. The price he paid was thought to be excessive for ‘ Castlehill’ without an appurtenant pine land.
    Upon argument made on a motion for non suit, it seemed to me,
    That there could be no right of way by necessity, as the highways afforded access to both the defendant’s tracts :
    That there could be no right by prescription, as except for short periods, there had during the use, been unity of possessions—
    That no express grant could be shown by parol, and
    That no implied grant rose from the disposition made, or use enjoyed by the former owner; because a way is not one of those continuous and apparent easements to which a grant may be thus implied. A careful inspection of both of the plaintiff’s tracts might not have disclosed the existence of a way in other land appurtenant to either of them. The exercise of the right required for every occasion the intervention of human will and action. Its convenience gave to the way, only the same legal incidents, which, upon severance of tenements that had been held together, attach to a mill or other fixture for agricultural purposes that had been put by the former owner upon one of the tenements for the common advantage of all.
    “ I ordered a nonsuit, with leave for the plaintiff to move to set it aside.”
    The plaintiff appealed on the grounds :
    First. — Because it is respectfully submitted that his Honor erred in ruling that the plaintiff had not established by evidence, a right of way over the defendant’s close.
    Second. — Because his Honor erred in ruling that the plaintiff had not shown a necessary way over the defendant’s close,
    Third. — Because the ruling of his Honor was in other respects contrary to law.
    
      Mclcing, for appellant.
    
      Hutson, contra.
   The opinion of the Court was delivered by

WhitneR, J.

In the argument, plaintiff’s counsel rested his motion entirely on his second ground of appeal. In this he alleges there was error in the Circuit Judge in ruling that the plaintiff had not shewn a necessary way over defendant’s close.

The point raised will be much simplified bj putting out of view all the facts in proof anterior to the severance by James Cutbbert, Jr.; for though there may have been an open and well trodden path through Richfield the preceding forty years,” this cannot change the principles on which the proposition rests.

Unity of ownership extinguishes all such easements, notwithstanding expressions occur occasionally in some of the cases as though ways of necessity formed exceptions. It cannot well be said that one has a right of way over his own soil. The very definition of an easement shews it to be a privilege which one has over the tenement of another, so that when one purchases the land over which he has the way, the soil being his own, the mere appendancy is extinct. Hence in Gales & What, on Easements, 84, I find the doctrine “ It is clearly settled, on all the authorities, that during the unity, no way or easement can exist in the land;” sustained by Oro. Jac. 179 ; 2 Bing. 83, and other cases cited.

Having an eye to the state of things in 1849, disclosed in the report, and as though no road had ever existed, regarding the localities of these lands and the existing highways whereby access is afforded from the pine land to Oastlehill, can the road in question be at all said to be a thing of necessity, and hence an incident to the grant; that in fact tho grant itself would otherwise be inoperative ? It is urged, however, that such a test would be entirely too stringent, and that when one thus aliens, every thing necessary to a convenient enjoyment is included. To set forth in precise terms to meet every supposed case what shall constitute a way of necessity, would be no easy task. Neither elementary writers or adjudged cases to which I have had access, furnish a rule of service to plaintiff. In the very excellent treatise already referred to, of Gales & What. 71, such easements are classed as “ incident to some act of the owners of the dominant and servient tenements, without which the intention of the parties to the severance cannot be carried into effect.” They refer to 1 Wms. Saund. 323; Hob. 234; 2 Rolle, Abr. Tit. Grant, T. The general rule stated by Sergeant Williams in the first authority above cited, well illustrates the necessity. Where a man having a close surrounded with his own land, grants the close to another, the grantee shall have a way to the close over the grantor’s land as incident to the grant, for. without it he cannot derive any benefit from the grant.” Nott, J., in Lawton vs. Rivers, 2 McC. 447, adopts and illustrates this rule very fully. Where such right exists, difficulties may arise in the precise mode of laying out the way, but .to establish the right the necessity must be shewn. “ There must be an actual necessity, and not a mere inconvenience, to entitle a person to such right.” The same Judge adds, however, that it is net meant to say there must be an absolute and irresistible necessity; an inconvenience may be so great as to amount to that kind of necessity which the law requires.” The facts of that case, in which the way was denied, will well compare with this in negativing the idea of a legal necessity here.

Parol understandings could in no way affect the right in question, and comment on the ungraciousness of the demand or the denial, as the case may be, would be fruitless. We are constrained to say that on the facts of this case, the plaintiff is not entitled to a right of way over the land of defendant from necessity.

The motion to set aside nonsuit is refused.

O’Neall, Wardlaw, Withers, Glover and Muuro, JJ.s concurred.

Motion refused.  