
    Isaac Boatman and Wife v. Matthew Lasley.
    A right of way in gross is a right personal to the grantee, and can not he made assignable or inheritable by any words in the deed by which, it was granted.
    Motion for leave to file a petition in error to the District Court of Gallia county.
    The original action was brought in the Court of Common Pleas of Gallia county by Matthew Lasley against Isaac Boatman and wife, to foreclose a mortgage executed by the defendants to secure the payment of purchase-money of the lands mortgaged. The mortgaged premises, had been conveyed by the plaintiff to defendant, Isaac Boatman, on the 15th of March, 1870, by a deed containing a covenant that the demised premises were free and clear of all incumbrances. The defendant answered, and by way of counter-claim, alleged damages resulting from a breach of this covenant against incumbrances. The alleged incumbrance consisted of a private right of way over the warranted premises, outstanding at the date of the conveyance in one Alexander Logue. This right of way had been granted by deed, on the 7th day of June, 1862, by the warrantor, to “Logue, his heirs and assigns, and the tenants or occupiers for the time being of the lands now (then) owned and occupied by the said Alexander Logue, in section 15, town 5, of range 14, in the Ohio Company’s Purchase. It is also alleged in the answer, that, before the 15th of March, 1870 (the date of the covenant), said Logue had conveyed his lands in section 15, town 5, of range 14, in the Ohio Company’s Purchase, to one George W. Roush. It is not alleged, however, that Logue, at the time the right of way over the warranted premises was granted to him by the plaintiff, was the owner or occupier of any land in said section 15, or elsewhere, nor is it alleged that the right of way complained of became appendant or appurtenant to any land whatever, or that said Roush had any interest in said right of way.
    The plaintiff, in his reply, denied that Roush had an easement or right of way on the premises granted to the defendant, and also denied that the defendant had sustained any damage by reason of the right of way complained of.
    The cause was submitted to a jury, who assessed the defendant’s damages, by reason of the existence of the right of way, at $100, which sum was deducted from the mortgage debt, and decree entered in favor of the plaintiff for the balance.
    During the trial the defendant took a bill of exceptions, from which it appears that the defendants offered in evidence the deed for the right of way from Lasley to Logue, a copy of which is attached, marked “A.” They also gave evidence tending to prove that said right of way was still in the occupation of said Alexander Logue, and those claiming under him, who were then occupying the lands to which said right of way was intended to be made appendant. “And the plaintiff, to maintain the issue on his part, gave evidence tending to show that at the time said deed of right of way was executed by him. to Alexander Logue, the said Logue did notown the land to which the right of way was intended to be appendant, and that, said Logue had, prior to the execution of the deed of right of way, conveyed said lands to one George W. Roush.”
    The evidence being closed, the court charged the jury as follows: “ If the jury shall find from the evidence that at the date of the deed made by Lasley to Logue, marked “A,” the said Alexander Logue, grantee therein, was not the owner in fee or otherwise of softie real estate adjoining the farm through which said right of way is granted, or situate in the neighborhood, so that said right of way may become appurtenant to the same, then the said deed conveys a right of way personal to himself alone — one which can not descend to his heirs, and one which he can not assign or release to another person, except such other person be the owner of the farm through which said way was granted.”'
    The judgment of the Common Pleas was afterward, on petition in error, affirmed by the District Court of Gallia county.
    Leave is now asked to file a petition in error in this court to reverse the judgment below, for alleged error in the charge to the jury as above set forth.
    
      Joseph Bradbury, for the motion:
    A right of way, in gross, granted to a man, his heirs and assigns, is assignable. White v. Crawford, 10 Mass. 183; 3 U. S. Dig. 668, par. 470; Reynolds v. Reynolds, 15 Conn. 83; 5 U. S. Dig. 944, par. 377; Washburn on Easements, 9, par. 12; Bouvier’s Law Dic. 390; Senhouse v. Christian, 1 Tenn. 316.
    The doctrine stated in Washburn on Easements, 8, par. 11, is not, in fact, sustained by Ackroyd v. Smith, 10 C. B. 164, and the .other cases cited in its support.
    
      
      W. H. Lasley, contra:
    An easement, in gross, is not assignable; 3 Kent (8 ed.), 512; 2 Bouvier’s Inst. 187; Finch’s Law, 17, 31; Ham. N. P. 195; Washburn on Easements, 9, sec. 10, et seq.; Ib. 36, sec. 2; Ib. 87, sec. 39; Ib. 217, sec. 5; Ackroyd v. Smith, 10 C. B. (70 E. C. L.) 164; Garrison v. Rudd, 19 Ill. 558; 3 Kent, 420; Woolrych on Ways, 20; Crabb’s Real Prop. 233; Watson v. Brown, 1 Serg. & Rawl. 227; 2 Black. Com. 35.
    For the distinction between a profit a prendre, and an easement proper, see Walworth, Ch., in Post v. Pearsall, 22 Wend. 432; Washburn on Easements, 11.
   McIlvaine, J.

Is a private right of way over the lands of another, in gross, such an interest or estate in land, as may be cast by descent, or may be assigned by the grantee to one who has no interest in the land? These are the only questions in this case. If such a right be inheritable or assignable, the Court of Common Pleas erred in its charge; otherwise there is no error in the record.

The terms of the deed from Lasley to Logue plainly import an intention to make the right of way therein granted appendant and appurtenant to other lands, but the record does not disclose either the facts or the law given to the jury, whereby it could determine whether or not that intention was accomplished. It simply shows that the jury was instructed that if the right of way granted did not and -could not, under the circumstances, become appurtenant to lands other than those over which it was granted, then it was a mere personal right in the grantee, which could not be inherited from him, or transferred by him to a stranger.

The correctness of this instruction does not depend upon a construction of the deed by which it was grapted, for the terms of the grant are “to Alexander Logue, his heirs and assigns.” The real question is, whether or not a private right of way in gross is, in law, capable of being transferred or transmitted.

It is strongly insisted upon, in argument, that a right of way in gross may be conveyed to the grantee “ and to Ms-heirs and assigns forever,” because an owner in fee may carve out of his estate any interest less than the whole and dispose of the less estate absolutely; and this because the power to dispose of the whole estate includes a power to dispose of any part of it.

This argument assumes the affirmative of the very question in cozitroversy, to wit, that such a right of way is an interest or estate in the land.

A mere naked right to pass and repass over the land of another, a use which excludes all participation in the profits of the land, is not, in any proper sense, an interest or estate in the land itself. Such a right is in its nature personal; it attaches itself to the person of him to whom it is granted, and must die with the person.

If such right be an inheritable estate, how will the heirs take? In severalty, in joint tenancy, coparcenary, or as tenants in common ? If not in severalty, how can their interests be severed ?

If it be assignable, what limit can be placed on the power of alienation? To whom and- to how many may it be transferred? Why not to the public at large, and thus convert into a public way that which was intended to be a private and exclusive way only?

Where the way is appendant or appurtenant to other lands, very different considerations arise. There the right attaches to the lands to which the way is appurtenant, because it is granted for the convenience of their occupation without respect to the ownership or number of occupants. In such case the right of way passes with the dominant estate as an incident thereto. A right of way appendant can not be converted into a way in gross, nor can a way in gross be turned into a way appendant.

A very marked distinction also exists between a way in gross and an easement of profit a prendre; such as the right to enter upon the lands of another, and remove gravel or' other materials therefrom. The latter so far partakes of the nature of an estate in the land itself, as to be treated. as an inheritable and assignable interest. Post v. Pearsall, 22 Wend. 432.

Both upon principle and authority, we think there was-no error in the charge of the court below. Mr. Washburn in his work on Easements, page 8, par. 11, states the law upon this subject as follows: “A man may have a way in gross over another’s land, but it must, from its nature, be a personal right not assignable or inheritable; nor can it be made so by any terms in the grant, any more than a collateral and independent contract can be made to run with the land.” See also Ackroyd v. Smith, 10 C. B. 164; Garrison v. Budd, 19 Ill. 558; Post v. Pearsall, 22 Wend. 432; Woolrych on Ways, 20; 2 Black. Com. 35; 3 Kent’s Com. 420, 512.

Leave refused.  