Petition eor Partition. Facts agreed. In April, 1866, Davis conveyed to Ray the premises of which partition is sought, the northerly line of which was at one point only about six feet distant'from the dwelling-house thereon, “together with the right of way on the north side and- across the land now owned by said grantor and not hereby conveyed, as heretofore used by the former occupants of the premises hereby conveyed, or the right to use five feet of the land next .north of…
Good law ✅— No negative treatment on recordhow we know
Decided 1891-12-05
How this case has been cited
Cited by 3 later decisions — most recently July 1951
3 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
What may be the legal effect of a grant by a ten-ant in common to his cotenant of a right of way over the common property, or of a like grant by the owner of the entire estate-in his conveyance of an undivided fractional part of it (
Whitton
v. Whitton, 38 N. H. 127, 133, 134;
Ballou
v. Hale, 47 N. H. 347, 350-352;
Holbrook
v. Bowman, 62 N. H. 313, 321;
Marshall
v. Trumbull, 28 Conn. 183, 184—186;
Mendell
v. Delano, 7 Met. 176 179, 180), need not be considered. The conveyed by Ray’s-deed in 1868 is “the use of the passway on the north of said premises as enjoyed” by him, “upon condition,” that is to say, his right under the deed of Davis to use for the purpose of a pass-way a narrow strip of land, not conveyed to him by Davis, for a period not exceeding twenty years. The defendant is entitled to use the portion of the lot lying between the dwelling and the-northerly line as a passway to other parts of the lot, not as a way by express grant or of necessity, but by virtue of his ownership thereof as tenant in common with the plaintiff.
¶2
Upon partition a tenant in common is entitled to no particular-part of the common estate, but onty to his equal proportion of the-
*110
whole. If necessary or desirable to a just division, a right of way may be given to one cotenant over the share assigned to another.
Cheswell
v. Chapman, 38 N. H. 14. In every case, what will be ■a fair partition is a question of fact for the committee, to be determined upon a consideration of the value of the entire property, of the several parts into which it may be separated, of the interests and convenience of the parties concerned, and of all ■other evidence.
Doughty
v. Little, 61 N. H. 365;
Holbrook
v. Bowman, 62 N. H. 313, 321.
