Lapique v. Morrison

JAMES, J.

This action was commenced by Pierre Agoure, who claimed right to the use of a right of way for road purposes across the land of defendant. By the allegations of

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the complaint facts are alleged which support both a cause of action to assert the right in the plaintiff to the use of the road, as of necessity, as well as the right by adverse user; at least, such is the general complexion of the allegations contained in the complaint. In the prayer it is demanded that defendant be enjoined from interfering with the plaintiff’s use of the alleged right of way, and also that the interest of .plaintiff therein be quieted as against the defendant. After trial was had and judgment rendered in favor of the plaintiff, an order was made substituting the respondent herein as party plaintiff, the order of the court in that behalf reciting that it appeared that the estate, right, title, and interest in the action had been assigned by the plaintiff to'the respondent. No point is made as to the regularity of this order.

We think the assignability of the

cause of action

in this particular case might well be questioned, but as the point is not raised, we are not called upon to determine that matter. However, we think that the judgment and order denying the defendant a new trial, both of which were appealed from, must be reversed. The evidence is not sufficient to support either. In the first place, the findings of the court are not such as to establish facts in support of the claim that a right of way existed in Agoure’s favor as of necessity. The only suggestion in that direction is the statement in the findings that the roadway ‘ ‘ is necessary to the reasonable enjoyment and use of plaintiff’s said lands. ” It is well established that a right of way by necessity can only be claimed and held where it furnishes the only way by which access may be had to the property of the claimant. ‘ ‘ The right of way from necessity must be in fact what the term naturally imports, and cannot exist except in eases of strict necessity. It will not exist where a man can get to his property through his own land. That the way over his own land is too steep or too narrow, or that.other and like difficulties exist, does not alter the case, and it is only where there is no way through his own land that a grantee can claim a right over that of his grantor. It must appear that the grantee has no other way.”