BRAYTON, C.J.
The plaintiffs and defendant are owners of real estate, lots of land adjoining each other, the defendants' lot lying between the lots of the plaintiff. These lots are all parcels of the homestead estate of one Joseph Jenckes, late of Smithfield, deceased.
In the partition of the estate of said deceased, among his heirs at law, made by order of the court of probate, the homestead, which was bounded on the west by a public way, was divided into three lots, No. 2, No. 4, and No. 5. The north lot, No. 2, was assigned to Edwin A. Jenks, under whom the plaintiffs hold. The south lot No. 5, was assigned to Abby W. Bullock, another heir at law, under whom the plaintiffs also hold, and the lot No. 4 was assigned to Sarah Jenks, under whom the defendant now holds. The dwelling house covers the whole front of the defendant's lot, No. 4, and extends northerly upon part of lot No. 5, and southerly upon part of lot No. 2.
The dwelling house was divided among the shares, thus: one half of the lower story next to and partly upon lot No. 5, was assigned to lot No. 5, the other part of the lower story next to and partly upon lot No. 2, was assigned to No. 2, the whole of the upper story to be and remain to No. 4, one third, the middle third, of the cellar, to No. 4 also.
To lot No. 4 was given, by said report, the right to pass up and down the front and back stairs, through the lower story, to the street, and to the land in the rear and to the cellar; a right to pass to and from the wood house situate partly on lot No. 4 and partly on lot No. 2, across both the lot No. 2 and lot No. 5, and the right of way across lot No. 5 to the "Chase driftway." These shares, with the ways appurtenant, and the ways charged upon them respectively, were valued at $1,000 each.
The partition was made Feb. 27, 1847, established May, 1847, and the parties entered into the occupation of their respective shares with the appurtenances, and have ever since until this controversy, used only the ways annexed to their respective shares by the commissioners of partition, — the owner of lot No. 4 using the way across No. 2 only to pass to and from the woodhouse, as provided in said report.
The defendant occupying No. 4, now claims that he has, above the right thus expressly granted, the further right to pass across the lot No. 2, from any portion of his lot No. 4, and for any purpose he may choose, but particularly to pass to and from a barn newly erected on his lot, and that, because there is no other access to it for any proper purpose of a barn. He claims this as a way of necessity; and, therefore, because notwithstanding express grants of other ways by the partition, it is impliedly granted by the implication arising from that necessity.
The easement here claimed is one of a class called easements of necessity, because they grow out of the necessity to have the easement, in order to any beneficial enjoyment of it.
But in all cases where a way of this kind exists, it is by grant, and though it is not given by any express terms, or even mentioned in the instrument of conveyance of the estate, it is implied from the necessity of its existence to any enjoyment of the estate granted. The grant therefore depends upon the necessity, and ceases with it.
"The grant of a thing," it is said, "passes everything included therein, without which the thing granted cannot be had."
"If I have a field enclosed by my own land on all sides, and I aliene this field to another, he shall have a way to this close over my land, as incident to the grant, for otherwise, he cannot have any benefit by the grant." Roll. Ab. W. Land, 3232; Gale W. on Easements. And it was held "that the way of necessity ceased as soon as the party had any other means of access to the close to which it led." Holmes v. Goring, 2 Bing. 76; S.C. 9 Moore, 166; in which case Best, C.J., said, "A way of necessity will be found to be nothing else than a way by grant; but a grant of no more than the circumstances which raise the implication of necessity require should pass. A grant, therefore, arising out of the implication of necessity, cannot be carried further than the necessity of the act requires, and the principle consists with all the cases which have been decided."
"From all of them it is clear," said Park J., that "it is a good answer" to such a claim, "that there is another way which the party may use."
All this supposes that there is no other way than the one claimed. The after acquisition of another in any way, defeats it, if the grantee have another at the time of the grant.
The necessity must be actual necessity. Mere inconvenience is not sufficient; but the inconvenience must be so great as to amount to a necessity. Lawler v. Rives, 2 McLean, 445. In Nichols v. Constance, 24 Pick. 192, the court say, "It is only the necessity that causes the way." "Great inconvenience is not sufficient."
These cases suppose that no express grant is made of any way, but a simple conveyance of the land; and the defendant's case would have fallen within them, but that no provision for any ways has been made by the commissioners in the partition of this estate.
The fact that the estate held by the defendant has been enjoyed by him, and others under whom he holds, for a period of twenty years, since this partition, shows clearly enough that no other way was necessary to the enjoyment of the estate during that period, and that there was no such inconvenience as approached a necessity.
The commissioners did not leave the extent of the easements here, however, to construction, but provide for and define those which should be appurtenant to the respective shares, and which shares should be servient, and to what extent. This was necessary, as well to prevent any dispute in relation to their respective privileges and burdens, as to ascertain definitely the value of each share to make them equal, which could not be settled without considering those privileges and burdens.
With the easements annexed, each share is valued at $1000, and with the burdens annexed they are valued at $1,000. The commissioners had in contemplation for this purpose the extent of each, and its effect upon the value of the land; and under it the appraisal was made so to extend the privilege for the benefit of the defendant as to increase the value of his estate, and depreciate the value of the plaintiff's share, and render the division unequal, and so unjust.
We think it quite sufficient that it was in contemplation in the division to define the easements, and that they were defined by the commissioners who made the partition, and that the estate can be enjoyed and occupied with them, however inconveniently. The provision expressly made leaves nothing to implication, either from necessity or convenience.
Still less can the grantee create a necessity by any act of his, either by destroying a way granted, and rendering another necessary, or by adapting the estate to uses not contemplated, and requiring privileges beyond such as are granted, and were in contemplation as the only ones.
New trial denied.