Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29. Page: 84
ix, 626 p. ; 22 cm.View a full description of this book.
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}75 ALLEY V. CARLETON. [Galveston,
grant, from necessity, by implication, from a grant in which it is not
expressed, and by prescription.
A way from necessity is impliedly reserved to the vendor when he sells
land surrounding other land of which he is the owner, and to which
he can only have access through the granted premises.
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 to his own.
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.
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.
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.
But, although the plaintiff avers himself out of court, as to the right
of way, yet as he claimed damages for obstructions while his right
existed, it was error to dismiss his petition for-damages.
[75] APPEAL from Lav.aca. The case was tried before
Hon. FIELDING JONES, one of the district judges.
The most material facts averred by the plaintiff are
given in the opinion of the chief justice. The pleadings
on both sides are very voluminous. But as the petition
was dismissed on demurrer, upon the ground that by
amendment the plaintiff averred that he had sold the
land pending the litigation, and had reserved nothing to
himself except a mortgage, to secure the purchase money,
and the obligation which arises on his general warranty
of title, and had thereby stated himself out of court, so
far as the right of way was concerned, the pleadings of
the defendant need not be stated.
No brief for appellant has been furnished to the reporter.John T. Harcourt, for appellee. As the appellant has
not yet submitted a brief of the authorities relied upon
to obtain a reversal of the case, I will only refer the court
to such authorities as I have at hand, and which, it is
believed, will sustain the ruling of the court below
84
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29., book, 1882; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28544/m1/82/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .