¶1The petitioner purchased and the respondent sold the tract of land in question for a consideration which covered a right of way through the lane, and which would not have been paid for the land alone. It does not expressly appear, but I think it is fairly to be implied, that there had been an appurtenant right of way, which had ceased by operation of law. The respondent represented to the petitioner that such a way still existed and would pass by virtue of the clause in relation to privileges and appurtenances in the deed, and the petitioner took the deed relying upon the truth of that representation. Both parties were mistaken then in relation to the fact of the existence of the way — a mutual mistake. There was no mistake-as to the legal effect of the deed, for it would have conveyed the appurtenant way, if in existence, and in fee, if such a way could be conveyed in fee.
¶2The law is so that an appurtenant right of way cannot exist where.both tracts are owned by the same person. Of this the parties were ignorant, and the effect of the union of the estates and the destruction of the way thereby did not *326enter into their contemplation. The respondent sold then, and the defendant bought, an extinct thing, both supposing it to be existent, and both ignorant that from the nature of, the case, and as matter of law, the object could not exist. There was not here a mistake as to the legal effect of a deed, but a mistake as to the existence of a part of the subject-matter of it. Nor was there a mistake as to the nature and operation of any known or contemplated principle of law operative upon the contract. There was superadded to the mistake of fact, ignorance of a principle of law which, if known and contemplated, would have prevented the mistake under which the parties acted.
¶3We think the petitioner was entitled to relief and the Court of Common Pleas is so advised.