Way

A passage, street, or road. A right of way is the privilege which an individual, or a particular description of individuals, as the inhabitants of a village or the owners or occupiers of certain farms, have of going over another’s ground. It is an incorporeal hereditament of a real nature, entirely different from a common highway. Cruise, Dig. tit xxiv. s. L A right to pass over another’s land more or less frequently according to the nature of the use to be made of the easement, and casion or chose to pass.

Bodflsh v. Bodflsh, 105 Mass. 319.

A right of way may arise: By prescription and immemorial usage, or by an uninterrupted enjoyment for twenty years under a claim of right; Co. Litt. 113; Garrett v. Jackson, 20 Pa. 331; Reimer v. Stuber, 20 Pa. 458, 59 Am. Dec. 744; Sheeks v. Erwin, 130 Ind. 31, 29 N. E. 11; Coburn v. San Mateo Co., 75 Fed. 520; Bushey v. Santiff, 86 Ilun 384, 33 N. Y. Supp. 473; Follendore v. Thomas, 93 Ga. 300, 20 S. E. 329. By grant; as where the owner grants to another the liberty of passing over his land; 1 Ld. Raym. 75; Salisbury v. Andrews, 19 Pick. (Mass.) ^250; 7 B. & C. 257. If the grant be of a freehold right it must be by deed; 5 B. & C. 221; Foster v. Browning, 4 R. I. 47, 67 Am. Dec. 505. By necessity; as where a man purchases land accessible only over land of the vendor, or sells, reserving land accessible only over land of the vendee, he shall have a way of necessity over the land which gives access to his purchase or reservation; 5 Taunt. 311; Wissler v. Hershey, 23 Pa. 333; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61; Bass v. Edwards, 126 Mass. 445; Mead v. Anderson, 40 Kan. 203, 19 Pac. 708; Barnard v. Lloyd, 85 Cal. 131, 24 Pac. 658; and this may exist even after the vendor has conveyed his land to a third person; Logan v. Stogsdale, 123 Ind. 372, 24 N. E. 135, 8 L. R. A. 58; but a way of necessity is not created by the fact that a road over grantor’s land would be of less distance to a highway than a road already established; Vossen v. Dautel, 116 Mo. 379, 22 S. W. 734. The necessity must be absolute, not a mere convenience; Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 302; Stefens v. Orr, 69 Me. 323; Mayo v. Thigpen, 107 N. C. 63, 11 S. E. 1052; Oliver v. Pitman, 98 Mass. 50; 11 Ch. Div. 968; L. R. 9 Ch. Ill; contra, Williams v. Safford, 7 Barb. (N. Y.) 309; and w r hen it ceases the way ceases with it; Pierce v. Selleck, 18 Conn. 321; New York, L. I. & T. Co. v. Milnor, 1 Barb. Ch. (N. Y.) 353.

See Easement.

By implication; ltightsell v. Hale, 90 Tenn. 556, 18 S. W. 245.

By reservation expressly made in the grant of the land over which it is claimed; White v. Crawford, 10 Mass. 183; Hart v. Connor, 25 Conn. 331. By custom; as where navigators have a right of this nature to tow along the banks of navigable rivers with horses; 3 Term 253. By acts of legislature; though a private way cannot be so laid out without the consent of the owner of the land over which it is to pass; Reynolds v. Reynolds, 15 Conn. 83; Taylor v. Porter, 4 Hill (N. Y.) 140, 40 Am. Dec. 274; Mc Cauley v. Dunlap, 4 B. Mon. (Ky.) 57. The easement of a property owner in a private way across a railroad track is extinguished on his jointhe private way; Mc Kinney v. R. Co., 222 Pa. 48, 70 Atl. 940, 21 L. R. A. (N. S.) 1002. A right of way may be either a right in gross, which is a purely personal right incommunicable to another, or a right appendant or annexed to an estate, and Which may pass by assignment with the estate to which it is appurtenant; 3 Kent 420; Shepherd v. Watson, 1 Watts (Pa.) 35; Salisbury v. Andrews, 19 Pick. (Mass.) 250. But see Easement. A right of way appurtenant to land is appurtenant to all and every part of the land, and if such land be divided and conveyed in separate parcels, a right of way thereby passes to each of the grantees; Underwood v. Carney, 1 Cush. (Mass.) 285; Watson, v. Bioren, 1 S. & It. (Pa.) 229, 7 Am. Dec. 617. A way is never presumed to be in gross when it can be construed to be appurtenant to land; French v. Williams, 82 Va. 462, 4 S. E. 591. Where a way appurtenant to land granted is not located by the grant, the parties may locate it by parol agreement at any point on the premises over which the right is granted; Kinney v. Hooker, 65 Vt. 333, 26 Atl. 690, 36 Am. St. Rep. 864. Ways may be abandoned by agreement, by evident intention, or by long non-user. Twenty years’ occupation of land adverse to a right of way and inconsistent therewith bars the right; Yeakle v. Nace, 2 Whart. (Pa.) 123; Crain v. Fox, 16 Barb. (N. Y.) 184; Pope v. Devereux, 5 Gray (Mass.) 409. Where a way of necessity once existed it will be presumed to exist until some fact is shown establishing non-existence; Blum v. Weston, 102 Cal. 362, 36 Pac. 778, 41 Am. St. Rep. 188. A person cannot acquire a prescriptive right of way over his own lands, or the lands of another which he occupies as tenant; Vossen v. Dautel, 116 Mo. 379, 22 S. W. 734; and where one has uninterruptedly used a way over another’s land for the necessary length of time to establish an easement by adverse user, it will be presumed that the user was adverse, and under claim of title, and the burden is on one claiming that it was by virtue of a license to prove that fact; Colburn v. Marsh, 68 Hun 269, 22 N. Y. Supp. 990. The owner of a right of way may disturb the soil to pave and repair it. But a way granted for one purpose cannot be used for another; Brown v. Stone, 10 Gray (Mass.) 61, 69 Am. Dec. 303. A person having a right of way which is obstructed by a house erected upon the way may, after notice and request to remove it, pull it down, although it is actually inhabited; [1S91] 3 Ch. 411. Lord Coke, adopting the civil law, says there are three kinds of ways: a footway, called iter; a footway and horseway, called may be added a driftway, a road over which cattle are driven; 1 Taunt. 279. Where a railway company closed an old road at a level crossing, by the consent of the plaintiff’s predecessor, it was held that the defendant had a right, in passing, to go on plaintiff’s land; 39 T. L. R. 555. See Highway; Street; Easement; Thoroughfare.