can assert against the wife. He has the whether the same accrues to her before or right of ingress and egress and marital during her coverture. Provided, that said occupancy, but can assume no dominion last will and testament be executed in the over her land, except as her properly con- presence of two or more witnesses, neither stituted agent.' In Walker v. Long, supra, of whom shall be her husband" (1848), we find the folowing reference to the act: and that "the true intent and meaning of 'By virtue of the act of 1848, and the fur- the act of assembly to secure the rights of ther modification made by the Constitution married women, passed the 11th day of of 1868, the tenancy by the curtesy initiate April, 1848, is, and hereafter shall be, that is stripped of its common-law attributes un- the real estate of any married woman in this til there only remain the husband's bare commonwealth shall not be subject to execuright of occupancy with his wife, with the tion for any debt against her husband, or on right of ingress and egress (Manning v. account of any interest he may have, or Manning, 79 N. C. 293, 28 Am. Rep. 324), may have had, therein as tenant by the and the right to the curtesy consummate curtesy, but the same shall be exempt from contingent upon his surviving her. levy and sale for such debt during the life The husband is still seised in law of the of said wife" (1850). It may be noted that realty of his wife, shorn of the right to prior to the enactment of these statutes take the rents and of the power to lease the legislature of Pennsylvania had abolher lands. He has by the curtesy ished the necessity for birth of issue as a initiate a freehold interest, but not an es- prerequisite to the vesting of an estate by tate in the property.' It would seem that the curtesy. Clarke's Appeal, 79 Pa. 376; the more recent decision in Taylor v. Tay- Harris v. York Mut. Ins. Co. 50 Pa. 341; lor, 112 N. C. 134, 16 S. E. 1019, is a direct Curry v. Bott, 53 Pa. 400; Woodward v. authority against the claim asserted by the Wilson, 68 Pa. 208; Williams v. Baker, 71 plaintiff. In that case the court, speaking Pa. 476: Gamble's Estate, 5 Clark (Pa.) by Shepherd, Ch. J., says: 'In all of these 4; Teacle's Estate, 6 Pa. Co. Ct. 553, afcases the actual decision (as distinguished firmed in 132 Pa. 533, 19 Atl. 274. In Sharpfrom several expressions founded upon the less v. West Chester, 1 Grant, Cas. 257, there common law) may, it is thought, be recon. is an incidental holding contrary to the inciled with the recent ruling of this court terpretation established by the cases here in Jones v. Coffey, supra, that under the cited. act the husband has no right which he can assert against the wife in her real property. This appears to be in accord with the early declaration of the court that "the sole object of the act was to provide for her a home of which she could not be deprived, either by the husband or by his creditors." ceding that the cases may not be altogether harmonious, we must adopt the later decisions, and according to these the plaintiff is entitled to recover; for, admitting that a divorce a mensa et thoro cannot, as it is claimed, affect the property rights of the parties (Taylor v. Taylor, 93 N. C. 418, 53 Am. Rep. 460), the defendant, as against the wife, had no property rights whatever, but simply a right of ingress and egress for the purpose of enjoying her society, and these he has forfeited during the coverture, or until a reconciliation, by his own misconduct. Taking the other view, however, and admitting that the husband had a right to the rents and possession of the land during coverture, we think that such rights must yield when they come in conflict with the paramount rights of the wife, as indicated by the act of 1848.' It appears in this case that there was a written lease signed by the plaintiff and his wife, but there was no privy examination of the latter, as required by the act of 1848 (Revisal, § 2097), and also by the Revisal, § 2096. The lease was therefore void as to the wife, and passes no interest to the husband in the rents and profits of the land, if otherwise he would have acquired an interest."

Con

-that, "any married woman may dispose by her last will and testament of her separate property, real, personal or mixed,

-that the real estate which is the property of any married woman before marriage, or which may become her property after marriage, shall be and is hereby so far secured to her sole and separate use that the same, and the rents, profits, and income thereof, shall not be liable to be attached, or in any manner taken, for the debts of the husband, either before or after his death, Martin v. Pepall, 6 R. I. 92; Ross v. North Providence, 10 R. I. 461; Briggs v. Titus, 13 R. I. 136, citing Briggs v. Titus, 7 R. I. 441.

Statutes very similar to those quoted, supra, have been held to merely prevent the vesting of an estate in the husband until the death of the wife, and in this way her estate is protected, but it is said that estates by curtesy initiate are not abolished, but merely made contingent, instead of vested, estates. Stewart v. Ross, 50 Miss. 776; Hill v. Nash, 73 Miss. 849, 19 So. 707.

In Missouri a statute provides that the husband's interest in the wife's real estate cannot be conveyed by him unless the deed be "acknowledged by her in the manner now provided by law." Marshall v. Anderson, 78 Mo. 85; Rust v. Goff, 94 Mo. 511, 7 S. W. 418. So, it has been held that if the wife is not examined separate and apart according to statute when she acknowledges the deed by herself and husband for her property, the deed is ineffectual to convey even his interest as tenant by the curtesy initiate (Rust v. Goff, supra), and that the dedication to public use of the wife's real estate by the husband alone is ineffective to convey even the husband's estate by the curtesy initiate (Marshall v. Anderson, supra). But this rule appears to have been complete

J. W. M.

class of legislation here considered, as it ex- | Willis, 7 Allen, 370, 83 Am. Dec. 688; pressly abolishes all estates by the curtesy, Whitehouse v. Cummings, 83 Me. 91, 23 and substitutes another. It is here cited Am. St. Rep. 756, 21 Atl. 743; Dolliff v. Boston & M. R. Co. 68 Me. 173; Stevens for the purpose of distinction only. v. Orr, 69 Me. 323; Stillwell v. Foster, 80 Me. 333, 14 Atl. 731; Allen v. Kincaid, 11 Me. 155; Seeley v. Bishop, 19 Conn. 128; Abbott v. Stewartstown, 47 N. H. 230; Ogden v. Jennings, 62 N. Y. 527; Root v. Wadhams, 107 N. Y. 385, 14 N. E. 281; Nichols v. Luce, 24 Pick. 102, 35 Am. Dec. 302; Batchelder v. State Capital Bank, 66

VERMONT SUPREME COURT.

PATRICK F. HOWLEY

V.

GEORGE T. CHAFFEE, Impleaded, etc., N. H. 386, 22 Atl. 592; Bonelli Bros. v.

Appt.

PPEAL by defendant Chaffee from a decree of the Chancery Court for Rutland County in favor of plaintiff in suit to enjoin defendants from closing up an alleged right of way of necessity to Reversed. plaintiff's buildings.

The facts are stated in the opinion. Messrs. F. S. Platt, W. B. C. Stickney, and T. W. Moloney, for appellant: A way of necessity never exists where property get to his can through his own land, however inconvenient the way through his own land may be.

a

man

own

Dee v. King, 73 Vt. 375, 50 Atl. 1109; Washb. Easements, § 233; Hyde v. Jamaica, 27 Vt. 449; Harwood v. Benton, 32 Vt. 724; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671, Willey v. Thwing, 68 Vt. 128, 34 Atl. 428; Wiswell v. Minogue, 57 Vt. 620; Plimpton v. Converse, 42 Vt. 716; Stuyvesant v. Woodruff, 21 N. J. L. 133, 47 Am. Dec. 156; Carbrey v.

Note. As to easements created by severance of tract of land with apparent benefit existing, see notes to Rollo v. Nelson, 26 L.R.A. (N.S.) 315; Duvall v. Ridout, L.R.A. 1915C, 345; and Watson v. French, L.R.A. 1915C, 355.

As to way of necessity where other possible modes of access exist, see notes to Corea v. Higuera, 17 L.R.A. (N.S.) 1018, and Doten v. Bartlett, 32 L.R.A. (N.S.)

1075.

Blakemore, 66 Miss. 136, 14 Am. St. Rep. 554, 5 So. 228.

Messrs. J. C. Jones and Charles L. Howe, for appellee:

Upon the severance of a heritage, a grant will be implied of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they have no legal existence as easements; and the law will imply a reservation of like easements in favor of the part of the heritage retained by the grantor.

Harwood v. Benton, 32 Vt. 724; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671; Willey v. Thwing, 68 Vt. 128, 34 Atl. 428; Dee v. King, 77 Vt. 230, 68 L.R.A. 860, 59 Atl. 839.

From the necessity of a right of way to the reasonable use and enjoyment of land granted or reserved, is to be found an implied grant or reservation of such right, in the absence of some expressed negation thereof in the deed.

Wiswell v. Minogue, 57 Vt. 616; Dee v. King, 77 Vt. 230, 68 L.R.A. 860, 59 Atl. 839; Rollo v. Nelson, 26 L.R.A. (N.S.) 315, and note.

Powers, Ch. J., delivered the opinion of

the court:

George Richardson in his lifetime owned a large parcel of land on the south side of Center street in the city of Rutland. He also owned a 12-foot right of way to the east end of this land from Wales street, which crosses Center street east of this property. On May 23, 1883, Richardson conveyed a part of this land to one Martell. The land so conveyed, hereinafter called the Martell lot, is in the northeas' corner of the original parcel, and is about 35 feet wide on Center street and 80 feet deep. On December 11, 1906, Addie Richardson, who became the owner of the remaining property at George Richardson's decease, conveyed to the defendant Chaffee all that remained of the original parcel, including the right of way, except a piece next west of the Martell lot. The piece so excepted has

a frontage on Center street of 55 feet and I came nearly to the west line of the Chaffee is 80 feet deep. The land conveyed to lot at that point, and quite to the south Chaffee is irregular in shape, as will here-line against the Bardwell stable. It exinafter appear. On July 18, 1912, Addie tended east to a point about as far as the Richardson conveyed to the orator the middle of the Martell lot, and had a shed land excepted from the deed to Chaffee, and attached at its southeast corner. There the same is hereinafter called the Howley was an open space on the Chaffee lot in the lot. At the time Mrs. Richardson deeded rear of the Martell lot, extending from the to Chaffee, the buildings and structures east side of the platform to the east line standing on the premises mentioned were of the lot, and the east part of this space located as follows: On the Martell lot was extended south along the east end of a brick block fronting on Center street, south barn to the shed mentioned. The with a wooden addition on the rear. This right of way from Wales street ran to the structure occupied the whole width of the east line of this open space, It thus aplot, and all of its depth, except about 7 pears that the Chaffee lot was fully covered or 8 feet. This left an open space between with buildings and structures, except this the Martell buildings and the south line open space cast of the platform and the of the lot about 35 feet east and west, south barn. By the deed to Chaffee, a 10and about 8 feet north and south. On the foot open space across the rear of the HowHowley lot was a brick block fronting on ley lot was stipulated for, to be used for Center street. This block was 55 feet wide a common passageway; and for light, air, and 50 feet deep. It occupied the entire and fire escapes for both parties. The Howfrontage of the lot, and had a wooden ad- ley block was divided on Center street into dition on the rear at the southeast corner. three stores and a stairway leading to the An old barn, hereinafter called the north upper floors. The stores had basements barn, stood on the Howley lot in the rear which opened into the 4-foot space above of the block just mentioned. This barn mentioned. Ever since this block was built extended practically (if not quite) to the (1885), Richardson and his tenants have west line of the Howley lot, and practically continuously used the right of way from (if not quite) to the south barn, herein- Wales street. Their teams would come in after described. There was an open space from Wales street, swing around the northbetween the north barn and the Howley east corner of the south barn to the platblock of about 4 feet, extending from the form above mentioned. This is as far as west line of the lot to a point about 10 feet teams could go, as the north barn, the harfrom the east line thereof, where it came ness shop, and the platform blocked the to the wooden addition already referred to. way. The evidences of this use of a way This addition completely filled the space be- by the occupants of the Howley block were tween this barn and the Martell lot to a plain to be seen upon the ground. Some point as far south as the addition of the use of the open space on the rear of the Martell block extended. And from that Martell lot was also made by these teams, point a platform extended south to the especially in turning around, as the space south line of the Richardson land, com- next to the platform and on the Chaffee lot pletely filling the space to the south barn was only about 10 feet wide. There was no and the east line of the Howley lot. This opening in either the north or east walls wooden addition to the Howley block was of either of the barns, except a door in the used for a harness shop. It thus appears east end of the south barn nearly or quite that the Howley lot was completely cov- opposite the right of way to Wales street. ered with structures, except for the 4-foot Notwithstanding the finding that at the space above mentioned. On the land con- times the Chaffee and Howley deeds were veyed to Chaffee was a livery stable given, the Howley lot was fully covered with fronting on Center street, occupied by one buildings and structures, except as noted, Morse as tenant. This stable was a rect- and teams could only go as far west as the angular, wooden building, extending from platform, the chancellor finds that there the Howley block to the west and south was access to the rear of the Howley block, lines of the west part of the Chaffee lot. and the basements therein, by those on foot, The Chaffee lot also included a strip of land and that a constant use was made of this lying south of the Howley and Martell lots way out from the basements. If this be and some land extending further south to so, such access must have been through the the Bardwell stables, so-called. So the deed harness shop, for, as we have seen, there to Chaffee included 8 or 9 feet off the south was no opening in the east or north walls side of the north barn and the platform at of the north barn, and this barn and the its east end. South of this barn, and on harness shop filled the space on the Howley the Chaffee lot, stood another old barn, lot. The lease of the livery stable and old hereinafter called the south barn. This barns did not expire until April 1, 1913, so