The parcels of land owned by the plaintiff and defendant, were formerly a part of the estate of Adino Hale. They were sold by his executors, at public sale, under an order of the court of probate, for the payment of debts. Both pieces were sold on the same day, and the deeds were simultaneously executed, by the executors.
To the plaintiff’s action for a trespass in crossing his land, the defendant has pleaded a right of way of necessity.
On the trial, the plaintiff claimed, that his land was first bid off' at the sale, and prayed the court to instruct the jury, that if they so found, they must find a verdict in his favour, although the defendant might have been entitled to a right of way, had his land been first bid off. The instruction was given in conformity with this request.
It is well settled, as a part of the common law of England, that, if a man having a close, to which he has no access, except over his other lands, sell that close, the grantee shall have a way to it, as incident to the grant; for without it, he cannot derive any benefit from the grant. This rule has been established for more than two centuries, and seems not to have been questioned on the trial. Holmes v. Goring, 2 Bing. 76. Buckby v. Coles, 5 Taun. 311. Morris v. Edgington, 3 Taun. 24. And although doubts have formerly been expressed upon the subject, it seems now to be as well settled, that, if the grantor had reserved that close to himself, *44and sold bis other lands, a right of way would have been -reserved. Howton v. Frearson, 8 Term Rep. 50. Holmes v. Goring, 2 Bing. 56. Clark v. Cogge, Cro. Jac. 170. Jorden v. Atwood, Owen 121. Nichols v. Luce, 24 Pick. 102.
The way, in the one case, in contemplation of law, is granted by the deed ; and in the other case, reserved. And although it is called a way of necessity, yet in strictness, the necessity does not create the way, but merely furnishes evidence as to the real intention of the parties. «For the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law, under such circumstances, will give effect to the grant according to the presumed intent of the parties.
A way of this kind is limited by the necessity which creates it. It ceases, when that necessity no longer exists. If a person entitled to such way purchases other lands, over which he can pass to the place to which the way leads, his way of necessity ceases.
If the case is to be governed by the common law, as established in England, the instruction given to the jury was erroneous. The distinction wAich the plaintiff on the trial claimed, does not exist. It makes no difference which land was bid off first, or which was first conveyed.
But there is another view of this case. These conveyances do not appear to have been made by the owner of the lands. They were a part of the estate of Hale; and, unless devised by his will, descended to his heirs at law. But the sales were made by the executors, under an order of the court of probate. These executors, as such, had no interest in the lands conveyed. They had merely the power to sell; and, in the exercise of that power, could not destroy the beneficial interest belonging to the heir, or devisee, in the lands not sold. They could not, by merely selling off the first lot, deprive him of the power of passing to and from the lands in the rear. Pernam v. Wead, 2 Mass. Rep. 203. And if they subsequently sell other lands in the rear of the first lot, the purchaser would be entitled to the same right of way as the ■owner would have, if no sale had been made.
*45But it has been said, the English common law is not applicable here, inasmuch as we have a statute authorizing selectmen to lay out private ways; and that, if a man will be so indiscreet as to convey lands, without reserving to himself any way to his other lands, he must be at the expense of purchasing a way in the manner prescribed in the statute.
There is certainly nothing in the statute, which in terms changes the common law upon this subject. And we think there is nothing arising by implication. Private ways may be very needful and proper, which are not strictly ways of necessity. Power, therefore, is conferred upon the select-men to lay out such ways, subject to a right of appeal to the county court.
The relief given by the statute would often be very inadequate. Thus, it is provided, that no highway or private way, laid out by the select-men, through any person’s enclosure, who shall declare himself aggrieved by laying out the same, shall be laid open or occupied, until the expiration of twelve months after the laying out of such way, that he may have an opportunity of applying to the county court for relief, and time to fence and secure his enclosure. Slat. 268. tit. 268. s. 11. Under this statute, it is in the power of one party to prevent the other from enjoying the way, for at least twelve months.
We cannot believe that the legislature ever intended to deprive a man of the enjoyment of his land, for such a period of time. To justify such a conclusion, there ought to be something explicit to that effect, in the statute.
It is, therefore, our opinion, that a new trial ought to be granted.
In this opinion Church, Storks, and Hinman, Js., concurred.