This action is brought to remove certain obstructions from a private way claimed by the plaintiff over certain lands of the defendant, and for an injunction. The case was heard before Mr. Justice PRATT without a jury, who ordered judgment against the plaintiff, which was affirmed at the General Term.
Both the plaintiff and the defendant derive their title to the lands referred to in the pleadings and proofs from James De Groot, deceased, who died seized of them. Some time about the year 1839, upon a bill filed in the late Court of Chancery for a partition, certain commissioners were appointed to make partition, who divided the lands into lots numbered from No. 1 to No. 13 inclusive. The division lines of the lots run north and south, and are bounded on the north by the lands of Chester Fellows. In the decree of partition there is the right of way claimed by the plaintiff in the following words: "the right of way or passage is reserved to the said heirs respectively, and to their heirs and assigns, from the highway near the west line of lot No. 179 (being the premises partitioned), and immediately adjoining the north line of the farm aforesaid, and extending east along the north line of said farm, to the extreme northeast corner of the *Page 371 wood lots aforesaid, to enable them to pass to and from their respective wood lots for the purpose of obtaining wood and timber therefrom, or for any other purpose." The defendant is the owner of lots Nos. 9, 10 and 11, and the plaintiff is the owner of lot No. 12, in fee by title derived from the heirs of James De Groot, and it has been necessary for the plaintiff occasionally to pass along and upon the way reserved to and from his lot No. 12, over lots Nos. 9, 10 and 11. There are three fences put up by the defendant across the way. One between lots Nos. 11 and 12, another between Nos. 10 and 11, and another between lots Nos. 9 and 10. In two of the fences he put stakes with rails to slip between them like bars, so as to be easily removed, and in the other he put what is called a slip gap, where the rails could be taken out and turned round, so that the plaintiff could pass and repass. These were the obstructions complained of. The plaintiff used the way at considerable intervals of time to get his wood, and the lots of the defendant were under cultivation. The claim of the plaintiff proceeds upon the theory that he is entitled to an open road, free from fences, with gates, bars and openings, which can be opened and closed at pleasure, and this is the only question presented by the appeal.
The easement is a right of passage without defining the manner of its enjoyment with or without bars or gates over the agricultural lands of the defendant. Nothing passes as an incident to such a grant, but what is requisite to its fair enjoyment. That must be the reasonable and usual enjoyment and user of such a privilege. The fee of the land still remains in the grantor of such a privilege, and he may use his lands and appropriate them to such purposes as he pleases, consistent with the grantee's right of passage to and fro. The plaintiff claims that the lands of the defendant shall be thrown open without fences or protection, or that he shall be required to erect a fence upon both sides of the way throughout its entire length, leaving the entrance open at the western end. The first of these propositions would, in effect, deprive the defendant of the use of his lands for cultivation, while the second would entail upon him an amount of expense *Page 372 in the making and maintaining the fences, quite as damaging in its consequences. The grantee of a private way is bound to keep it in repair, and cannot deviate from it and go upon another part of the grantor's lands, when it becomes impassable by floods or otherwise. And this shows that he must do whatever may be necessary to the reasonable and proper enjoyment of the right.
The judgment of the Supreme Court should be affirmed.
Judgment affirmed. *Page 373