Mendelson v. McCabe

SHAW, J.

The defendant appeals from the judgment upon the judgment-roll alone. The material facts as found by the court and admitted by the pleadings are as follows:—

The plaintiff was the owner of a right of way across, the rear of the lot of the defendant, subject to the right of the defendant to maintain gates thereon at the points of ingress and egress to his lot, and the maintenance of such gates was necessary to inclose the lot of the defendant and permit of his reasonable enjoyment of the same. The defendant for several years prior to the action had maintained a light and easily opened gate at each end of the right of way, which did not unreasonably obstruct the use by the plaintiff of the right of way. For a short period before the action was begun the plaintiff and his family had habitually left both gates open after using the way, and, when requested by the defendant to close them, the plaintiff refused to do so, and declared his intention to continue to leave them open whenever he used the way. The defendant in a cross-complaint set up these facts, and prayed that the plaintiff be enjoined from using the right

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of way, unless he should properly and securely close and fasten the gates immediately after passing through them. The cross-complaint did not allege that any actual damage had been caused by the acts of the plaintiff and his family in leaving the gates open. The court, as conclusions of law, decided that neither the plaintiff nor defendant was entitled to affirmative relief, but that the defendant was entitled to recover his costs, and judgment was entered accordingly. The plaintiff has not appealed from the judgment.

The defendant contends that upon the facts admitted and found he should have been granted the affirmative relief prayed for in his cross-complaint, and in" this contention we think he is correct. His right to maintain the gates for the protection of his premises would be worthless if the gates were continually left open when the way was not in use. The grant of the right of way, being subject to the right of the defendant to keep and maintain the gates, it follows that it is the duty of the plaintiff to close and fasten the gates after passing through them. If the defendant has the right to maintain the gates, the plaintiff has the right to open them only for the purpose of passing through and over the way, and then it is his duty to close them. (Goddard on Law of Easements (Bennett’s ed.), p. 331; Jones on Easements, sec. 412;