Kripp v. Curtis

Searls, C. This is an action to recover damages for the obstruction of a private road, and to remove and abate such obstructions as a private nuisance.

Plaintiff had judgment abating the nuisance, and for damages in the sum of fifty dollars, from which, and from an order denying a new trial, the defendants appeal.

It is conceded that plaintiff has been the owner of the land described in his complaint since March 29, 1865, and that his title thereto came from one J. S. Curtis, who is also the grantor of defendants, by conveyances subsequently executed ; that there was a public road running through the land of Curtis, about one half mile from the land of plaintiff, and no public road to said plaintiff’s land or nearer thereto than said public road.

The disputed facts were: 1. As to the existence of the private road from the highway to the land of plaintiff, and if yes, had it existed as such since 1865? 2. Had plaintiff any other way to the public road than the private way? 3. Did plaintiff hold and use the private way adversely to defendants and their grantors?

The findings of the court were in favor of plaintiff upon all the issues joined in the cause.

The privilege which one person, or particular description of persons, may have of passing over the land of another in some particular line is termed a right of way.

It is an incorporeal hereditament (3 Kent’s Com. 419; Washburn on Easements, 215; Boyce v. Brown, 7 Barb. 80), an easement which does not necessarily divest the owner of the fee of the land, and, for all other purposes except the servitude or use as a way, he owns it, and may have his action for an injury to his residuary inter[64]est as fully as he would be entitled to were it all his own. (Gidney v. Earl, 12 Wend. 98.)

A right of way may be public or private.

Public ways, as applied to ways by land, are usually termed “ highways ” or “ public roads,” and are such ways as every citizen has a right to use. (3 Kent’s Com. 32.)

A private way relates to that class of easements in which a particular person, or particular description or class of persons, have an interest or right as distinguished from the general public.