Alley v. Carleton

Citations

• 29 Tex. 74

Syllabus

<p>A right of way is either in gross or appendant. The first is attached to and vests the right in the person to whom it is granted. The second is incident to an estate, one terminus of which is the land or tenement of the party claiming it. It inheres in the land, concerns the premises, and pertains to its enjoyment, and passes with it.</p> <p>But a way in gross, being attached to the person, cannot be assigned or granted over to another.</p> <p>And, since this is the case, it must he claimed by grant or from prescription by the claimant in his own person, and does not arise in this manner where it can be fairly construed to be appurtenant to another estate; while a right of way appendant may be derived from express grant, from necessity, by implication, from a grant in which it is not expressed, and by prescription.</p> <p>A way from necessity is impliedly reserved to the vendor when he sells land surrounding other land of which be is the owner, and to which he can only have access through the granted premises.</p> <p>A way of necessity, however, must be more than one of convenience, for if the owner of the land can use another way, he cannot claim by implication to pass over that of another to get his own.</p> <p>As this right is implied by the law solely to secure the party in whom it is vested in the enjoyment of his property, of which he would be otherwise deprived, if the necessity for its use ceases, the right also ceases.</p> <p>It is a fallacy to suppose that a right of way of necessity is a permanent right, and the way a permanent way, attached to the land, and which may be conveyed by deed, irrespective of the continuing necessity of the grantee.</p> <p>It cannot be questioned that the conveyance of an estate to which such a right is appendant carries with it the right, and entirely divests the grantor of all interest in it.</p> <p>But, although the plaintiff avers himself out of court, as to the right of way, yet as he claimed damages for obstructions w