
    John Wells, Resp’t, v. Rial Tolman, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    1. Basements — Bight op wat.
    The conveyance oí land as to which the grantor had reserved a right of way over other land, carries to the grantee such right of way, though it i» not mentioned In his deed.
    3. Same — Location.
    Though the language of the reservation is somewhat indefinite, a practical location of the right of way will bind the parties.
    
      3. Same — Repairs.
    ■The owner of the dominant tenement; h^STthe.-right: to enter upon the roadway for the purpose, of making .and .to mahe, .spell repairs. as,, in view of .'the-nature of the roadway and the surrounding circumstances, are necessary for the reasonable, and convenient use thereof, and" to keep th.e same in good condition for the convenient and practical use of the same, doing no unnecesssaiy,injury,-to the,-servient ownpr:s,s.urraunding lands, or whatever may be growing thereon.
    
      4i Same.
    The use of the dominant owner must b.e cpnsis.ten.ti .with .the easement.
    5: Same — Time op use.
    _ A right of way over land when, “it.is not sown, with- grain,, and at all times when there‘is sleighing,’’ gives the right to cross it at all times when the lot-is not in. good-faith so sown-with grain that the use of the roadway will .cause, substantial, damage., to .the grantee.-
    3. Same-JUxte.ht ok-use.
    The reservation,of a Mght-of.way. over part of-the farm to a wood lot gives the grantor, the, right ,to use, the way for hauling-stone and other products .of the wood lot.
    7. Same — Costs.
    The allowance to plaintiff of-the costs, of an action to, establish the existence and determine the extent of a right of way is within the discretion of the court# where the action is -made necessary by defendant’s denial of such right.
    Appeal from a judgment, entered in favor of-plaintiff,
    
      Wilson, Kellogg & Wells, for app’lt; Edward H. Burdick, for resp’t.
   Merwin,

J. — This action was brought to establish the existence ,and determine the extent and character, of a private road, across defendant’s premises,, leading from one portion,of plaintiff’s farm to another portion, entirely disconnected; T.he premises of both parties were on the 1st of. April, 1.869,.owned by and1 in possession of Daniel-H. Huntington, and consisted of a farm of something over 100 acres, including a.wood lot of about twenty acre. On,the date named, Huntington,conveyed to William.L._and Mathew- B. Skellinger,the.premises now owned by defendant,.being thirty-five acres,., in eluding the north half, of. the wood lot. This thirty-five acres was- so situated as.to-cut off, the south-half of the-wood1 lot from the remaining portion of the farm. In this deed, was the. following- clause.: “ Reserving the right; of - way over the east lot to and from the wood. lot-, at all times when-said lot is not sown with grain, and at all times when there is sleighing.” Huntington, on the same day, conveyed the balance of tbe farm-, including the-south half of'the wood lot, to the plaintiff,. In- the deed to plaintiff, the whole farm and wood lot were described, and then there was, excepted therefrom “that portion thereof this day deeded” tq the Skellingers. 'The south,half of the wood,lot so conveyed to the plaintiff, was entirely surrounded by the land of others, so tho-t- plaintiff could have no access to it except by passing over property- that did not-belong tq,him, The “ east;lot” referred, to in the-reservation in "the deed to the Skellingers, was at that time a definite portion of the cleared land conveyed by the deed, and was separated: from the balance of the cleared. zhind by a fence, and wag the lot directly between the plaintiff’s cleared land and his.-half-of the wood lot. Prior to these conveyances, Huntington .had. for some, ti,me maintained a private road wholly upon his,own premises, extending from the south half of the wood, lot across the east lot to a portion of the land so conveyed to plaintiff, where.it connected through.a barway with a lane on plaintiff's portion of the premises running to a public highway. This road had, been used: by Huntington, for some years prior to the deeds, for the purpose of drawing wood and stone, from the wood, lot, The south half of the wood lot was covered with timber, and there was. also; upon it a stone quarry that had been opened in 1846, and to which the road ran; and this quarry the plaintiff had operated, and had taken out and drawn stone therefrom. The road ran from the wood lot in the most direct practicable route to the barway near the head of the lane, It has continued, to exist ever since the conveyances from Huntington, in the same location, connecting the same points, clearly defined and easy to be followed, and has been used by plaintiff whenever he had occasion to drive or pass back and forth between the lane and wood lot, without let or hindrance, until in May or June, 1892, when the defendant, having sown a portion of the east lot to grain, built a fence across it that intersected the road, but left no gate or barway in the fence where it crossed the road. The defendant neglected and refused to take down the fence or remove the obstruction after nqtice and request from the plaintiff so to do, and refused to recognize the right of the plaintiff to the roadway as used by him and his grantors for over forty years. This road was located, and open and visible, at the time of the conveyances by Hunttngton; and the kame way, with the identical track, has been used by the plaintiff ever since. It is, as it runs, about forty-seven rods, long, and about eight feet wide. The foregoing facts are. substantially as found by the court upon sufficient evidence.

Very clearly, the court did not err in holding that the plaintiff was entitled to the benefit of the reservation in the deed to the Skellingers, although it was not expressly maintained in the deed to him. Washb. Easem. (4th ed.) 40. That was clearly the intention of the parties, and both deeds are to be construed together. Hills v. Miller, 3 Paige, 254. Although the language of the reservation was somewhat indefinite, there was a practical location that binds the parties. Onthank v. Railroad Co., 71 N. Y. 194, 198. The surrounding circumstances and the use before and after the deeds leave no doubt on the subject.

The court held that the plaintiff as the owner of the dominant tenement, has the right to enter upon the roadway for the purpose of making and to make such repairs as, in view of the nature of the roadway and the surrounding circumstances, are necessary for the reasonable and convenient use thereof, and to-keep the same in good condition, for the convenient and practicable use of the same, doing no unnecessary injury to the defendant’s surrounding lands or whatever may be growing thereon. There is no doubt about the general rule as to the right of repair. Herman, v. Bobr erts, 119 N. Y. 42; 28 St. Rep. 843; Washb. Easem. 293. We see no good reason why the general role should not be applied to this case, substantially as it has been done by the trial court. The road was intended to" be permanent. Yery evidently, it needed repairs from time to time. The defendant claims that, whenever he desired to sow to grain any portion of the east lot that included 'any part of the road, he had a right to plow up the road.' This-had not been done until defendant did it, in 1892, and á reasonable construction of the reservation would not allow it. If the design was to have a definite route and a permanent road that could be safely used at any time allowed under the grant, it would be inconsistent with suclr design to give the defendant the right, at any time he chose, to materially injure its usefulness. The use of the owner must be consistent with the easement. Herman v. Roberts, 119 N. Y. 43; 28 St. Rep. 843.

The defendant claims that the court improperly construed the reservation. Several findings of law on the subject are excepted to, the most important of which, and the only one that need, be particularly discussed, is the sixth, which is as follows:

“ That the true construction and meaning of the words of said reservation are that the plaintiff has the right to pass and repass upon said roadway between the wood lot over the east lot to the barway at the head of said lane, with teams and to transport wood, stone, and the products obtained from said wood lot, at all times when the intervening land is not in good faith so sown with grain that the use thereof for a roadway would result in substantial injury to the owner of the fee, and at all times when there is sleighing, whether or not said east lot is sown with grain.”

It apparently was contended by the defendant at the trial that, whenever he sowed to grain any part of the east lot that included any part of the road, he could entirely close the road until the crop was off. The plaintiff claimed that bv by reason of his long user of the roads at all times without let or hindrance, although on some occasions the land was sown to grain, he had a right to pass over the route, ' although the lot was sown with grain, A construction was sought of the reservation, on the one hand, that would put it in the power of the owner of the lot at his will, by the use for grain of an insignificant part of the lot, to block the use of the entire road; and evidence was given tending to show that the sowing in 1892 was not in good faith, but for the purpose of stopping the drawing of stone by plaintiff from his quarry on the wood lot. On the other hand, a construction was sought that might, in effect, do away with the evident design of the reservation to give protection to the. owner when the lot was used in a particular way. ' At the time of the deed, the east lot was a definite inclosure, The road was entirely on it, and there was no fence that crossed it. The defendant, in 1892, divided the lot with a fence that crossed the road, and used for grain the portion next the wood lot. It is not to be supposed that the parties intended that the owner of the lot,, by the use of only a portion, and ulterior purposes, could get the benefit of the reservation wlien in'no substantial need of it for the protection of his grain. The easement ran with the land, and was perpetual, and its future usefnlnecs must be supposed to have been in contemplation of the parties. Having this situation in view, and the practical use that had without objection been given to the road up to 1892, we fail to find any good reason for the defendant to complain of the construction given by the court to the reservation. Provision was made that any fence across the roadway erected by defendant to protect his crops should have a convenient gate or barway at the crossing, and that plaintiff should close such gate or bars promptly after using the same.

It is further claimed by the defendant that costs should not have been given against him. They were given upon the ground that the action of the defendant made litigation necessary in order to protect the rights of the jalaintiff. Upon the trial, as appears from the record, the defendant claimed that the plaintiff had no right of way at all. It also appeared that defendant claimed that the plaintiff had no right to draw stone over the road. He claimed the right to plow it up whenever he sowed with grain. The costs were in the discretion of the court. The character of the litigation was within the particular observation of the trial court. We find no sufficient ground for saying that the discretion of the court on the subject was improperly exercised.

Judgment affirmed, with costs.

All concur.  