
    Dewitt C. Howland, Respondent, v. Frank B. Harder, Appellant.
    Third Department,
    November 13, 1912.
    Real property — action to compel removal of obstructions to right of way—right of passage from right of way—nuisance —judgment ordering removal of obstructions modified.
    Plaintiff, having a right of way over the defendant’s lands adjacent to his own and claiming the right to pass from said right of way to his own lands, brought an action to compel the removal of a stone wall, dirt; ashes and other materials with which the defendant had raised the surface of the right of way about six feet above the level of plaintiff’s land, making it impossible for him to pass from the right of way to his land at certain points.
    
      Held, that the plaintiff is entitled to go from the right of way upon his own lands' at any reasonable point that suits his convenience without having the same obstructed or interfered with by the defendant;
    That a judgment declaring the obstructions a nuisance and requiring the defendant to remove them from the entire right of way should be modified and the defendant be required only to remove them from a point selected by the plaintiff so as to afford a reasonable passage to and from the right of way to his lands.
    Kellogg and Lyon, JJ., dissented.'
    Appeal by the defendant, Frank B. Harder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 12th day of May, 1910, by direction of the court, certain questions having been submitted to the jury and found in plaintiff’s favor, and also from an order entered in said clerk’s office on the same day directing the entry of said judgment.
    
      John L. Crandell, for the appellant.
    
      Brownell & Tilden [L. Royce Tilden of counsel], for the respondent.
   Betts, J.:

The plaintiff and defendant in 1908 owned adjoining lands in the village of Philmont. The deed of plaintiff’s grantor, after describing the premises, contains this clause: Hiving and granting, also a right of way on the east side of the east line of said above described lot from the said stone bridge northerly across and over land of the party of the first part; and a further right from said bridge past the machine shop of Herrick & White to the main road, which last mentioned road is to be provided and made passable for teams by party of the first part. The party of the second part to make and maintain all fence on the west and south lines of said described lot, and the party of the first part to make and maintain such fence on the north and east lines.”

Under the first portion of this paragraph, that is “Giving and granting, also a right of way on the east side of the east line of said above described lot from the said stone bridge northerly across and over land of the party of the first part,” plaintiff claims a right of passage upon lands of the defendant to and along the east side of plaintiff’s lands on the western part of the lands of the defendant immediately adjacent to plaintiff’s lands, and the right to pass from said right of way onto his own land on or along any portion of said right of way and to return thereto.

Subsequent to the plaintiff acquiring this land he had sold land fronting along this right of way for the length of 110 feet on the northern portion thereof, so that there is now no question concerning the land lying along this right of way in front of said 110 feet, which are known now as the Smith lots. The defendant, or some person upon the lands of the defendant, had erected a house not far from the right of way, and the defendant, had placed a stone wall upon the line between the two parties along this right of way, and which wall extends apparently some 70 feet south of the Smith lots, and between the right of way and plaintiff’s lands. Back of this stone wall defendant has placed a large amount of dirt, ashes and other materials, so that while originally the lands of plaintiff and defendant were upon practically the same level, defendant has now raised the land upon this right of way in some places as much as 6 or more feet above the level of plaintiff’s land, making it impossible for plaintiff to pass from his land onto the right of way at these points, or to pass from the right of way onto his own land at such points.

The plaintiff, complaining of this action on the part of the defendant, brought this action to compel the defendant to remove this dirt, ashes and other materials, and the stone wall, describing the same as a nuisance, and has succeeded in his action. The court submitted two questions to the jury, which are as follows: “Did the defendant cause stones, earth and other materials to be placed in and upon the alleged right of way, and did such materials constitute an obstruction to the plaintiff’s free passage backwards and forwards upon the alleged right of way and at all reasonable points to and from the right of way onto his own land ?

“ If the materials in and upon the right of way do constitute an obstruction to the plaintiff’s free passage backwards and forwards upon the alleged right of way and at all reasonable points to and from the right of way onto- his own land, to what extent, if any, has he been damaged thereby ? ”

The jury answered the first question “Yes,” and to the question as to damages answered “No damage.”

After the rendition of this verdict the court accepted and recorded the verdict and rendered judgment against the defendant for costs, and

Second. That the dirt, ashes and other material, mounds of dirt and the stone wall referred to in the complaint in this action upon the right of way of plaintiff along the easterly line of his premises situated in the' village of Philmont, N. Y., are hereby adjudged and declared to be a nuisance upon said right of way and an obstruction thereon.

Third: That the said defendant do forthwith, upon the service upon said defendant or his attorney, of a certified copy of this judgment, remove the said dirt, ashes and other material, mounds of dirt and said stone wall, from said right of way, and within thirty days after such service fully complete such removal, so that the same shall be entirely taken away and the nuisance created thereby wholly abated, and so that the said right of way shall be and remain as it was before said dirt, ashes and other material, mounds of dirt and said stone wall were erected.”

And from this judgment the defendant appeals.

It appears that the plaintiff, a gardener, had at different times had manure drawn upon his land and the men drawing it passed along this right of way to a point apparently about fifty feet north from the south end of the stone wall thus erected by the plaintiff and twenty feet south of Smith’s lots and there going upon plaintiff’s lands. ' This plaintiff is now unable to do on account of the height of the wall and the magnitude of the obstruction behind it. The south part of plaintiff’s lands along this right of way is so wet at many times of the year that it is impossible to drive from the right of way onto the plaintiff’s lands with a load of any size, as the ground will not hold it and the team cannot draw it, so that plaintiff has been accustomed to going upon the northerly part of his land at the point in question and passing from the right of way onto the higher grounds and then going around upon his land to such portion thereof as he desires. When the season is sufficiently dry the plaintiff has another way of going upon his lands with heavy loads without going upon the right of way.

The defendant claims that this right of way simply extended ' along the eastern part of the plaintiff’s lands and did not include a right to plaintiff to leave that right of way to enter upon his own lands. In other words, that the right of way extended along the entire eastern line of plaintiff’s lands with no right to leave the same and enter upon his own lands. Manifestly that could not be true, as nothing whatever would be gained by plaintiff by having any such right of way that he could not leave the entire right of way but simply drive along his own lands upon his neighbor’s lands without any right to enter his own lands therefrom. Neither would the grantor have given any such ridiculous right of way upon his own land which would serve no good purpose to the purchaser, the grantee. Manifestly what was intended was to have this right of way to be used as the plaintiff had used it, for access to the northerly part of his lands when the southerly and low part of his lands were too wet to permit travel upon the same, and the rights granted under this privilege must be construed with what would he the clearly evident intention of the parties to the original instrument.

The plaintiff, I think, is entitled to go from this right of way upon his own lands at any reasonable point that suits his convenience without having the same obstructed, or interfered with by the defendant. (Weed v. Donahue, 26 App. Div. 360; Weed v. McKeg, 79 id. 218, and cases there cited; Herman v. Roberts, 119 N. Y. 31.) The point selected by plaintiff and never opposed by defendant may be considered a reasonable place of ingress and egress from the right of way to plaintiff’s lands.

I think this judgment is too broad and imposes an unnecessary burden upon the defendant. In the first place some fifty feet of the north end of the wall and the filling in is opposite lands now known as the Smith lot which plaintiff does not own and to reach which he has no occasion whatever to use the right of way. Plaintiff had selected the place where he would leave the right of way to go upon his own land and had used it for some time as appears without objection ánd that place was something about twenty feet south of the Smith line and fifty feet north of the south end of the wall. It would be no interference with the rights of the plaintiff in this right of way for the defendant to so improve his own land including the right of way as to make its use more beneficial to himself provided the reasonable rights of the plaintiff were not interfered with.

The defendant had used this right of way to get to his tenant house and that was no hindrance or injury to plaintiff provided the plaintiff at the place twenty feet south of the Smith lots could have a reasonably fair place to enter from the right of way to his own grounds and to return thereto. This is in accordance with the decisions above quoted.

I think, therefore, that the judgment as entered should be modified by inserting a proper provision therein that would relieve the defendant from removing any portion of the stone wall or filling of ashes and dirt adjoining Smith’s lands. Also that the judgment should be further modified by requiring the defendant to remove sufficient of the stone wall and the filling behind the same, at a point twenty feet south of the Smith lot. and fifty feet north of the south end of the wall, to give the plaintiff opportunity of reasonable access from the right of way to his own land at that point, and also access there from his own land to the.right of way, and said right of way made passable with a reasonable grade to the south of said opening, and that the defendant should not be required to make any further changes or alterations in the work that he has done and the material that he has placed upon and along the right of way, and that, as so modified, the judgment be affirmed in this court, without costs to either party.

All concurred, except Kellogg and Lyon, JJ., who voted for reversal.

Judgment modified by inserting a provision therein relieving the defendant from removing any portion of the stone wall or filling of ashes and dirt adjoining Smith’s lands; also further modified by requiring defendant to remove sufficient of the stone wall and the filling behind the same, at a point twenty feet south of the Smith lot and fifty feet north of the south end of the wall, to give the plaintiff opportunity of reasonable access from the right of way to his own land at that' point, and also access there from his own land to the right of way, and said right of way made passable with a reasonable grade to the south of said opening, and that the defendant shall not be required to make any further changes or alterations in the work that he has done and the material that he has placed upon and along the right of way; and as so modified the judgment is affirmed, without costs to either party. Judgment to be settled, on notice, before Betts, J.  