#### BAILEY v. COPELAND.

Private way — the several kinds of — how established — town plots — dedication.

Any one suing for an interruption of a private way, must establish a clear right of way in himself.

The making a plat of lots and alleys, with the design of recording it as an addition to a town, will not, of itself, make a dedication of the streets and alleys to the public.

Right of way incident, accessary, appendant, and regardant, will in general pass to the grantee of the principal, even without the words cum pertinentiis; and by operation of law, if one grant a parcel of ground in the midst of his land, he grants a way by implication to come to it.

Rights of way may be established by prescription, grant, reservation, implication, or by owelty of partition.

If, in prescribing for a way of necessity, the case show that the *necessity*for it does not exist, or was created by the party prescribing for it, it fails.

Case, for interrupting private way. Plea not guilty.

By the agreed state of facts submitted by the parties, it appeared that the owner of a piece of ground in Zanesville platted it into building lots, in the form of the diagram annexed, with the intention to make it an addition to the town, and record it as such.



In this plat he marked out an alley of ten feet, connecting the lot marked *Bailey*with 2d street. That lot fronted on Main street. *151A sale was advertised, but none effected, and the plat was never recorded. The owner afterwards conveyed to McIntyre the piece marked with his name, then to Baily the piece in his name, and then conveyed the residue to the defendant, Copeland. The deed to Bailey in describing the boundary, called for the head of a ten foot alley on the northeast. The deed to Copeland embraced within its boundaries the ground described as an alley, but made no mention of the alley. After all these conveyances, Bailey built a house covering his whole front on Main street. Subsequent to this, Copeland erected a warehouse upon his ground, covering that marked as an alley on 2d street. The plaintiff claims the use of this alley as a private way, and seeks to make title to it, as incident to his conveyance. When the defendant purchased, he had notice that the defendant claimed an alley. These transactions took place in 1829.

*Goddard*and Stillwell, for the plaintiff.

Spangler, contra.

Wright, J.

Before any one can recover for the interruption of a right of way, he must show that he has a right to be interrupted. It is conceded that no public alley was laid out here and dedicated to the public, according to our law. The intention to do so was once formed but was abandoned. It is claimed that the right to use this alley as a private way, was incident to the fee of the ground conveyed to the plaintiff, and it was, therefore, embraced in the deed to him. The incident, accessary, appendant, and regardant, will in most cases pass by the grant of the principal, without even the words cum pertinentiis; and, by operation of law, if a man grant a piece in the middle of his land, he at the same time impliedly grants a way to come at it. *Shep. Touch. 89*— F. *N. B.*183 — 1 *Saund. R.*323. *n. a.*One may establish a right of way by prescription, by grant, by reservation, by implication, or by owelty of partition. 3 *Bac. Ah.*highway, *C.*There is no express grant here, and the right comes, and is to be made out, if at all, by implication. It does not result from necessity, because the land granted was not surrounded by that of the grantor, therefore the way was not necessary to the enjoyment of his ground. It was bounded only on two sides by the grantor — on one side the defendant’s lot bounded a street. The plaintiff by his own act cut off the communication from the rear of his lot to the street, by erecting a house on the front. Was the right necessary, appendant or appurtenant to the piece of ground granted to the plaintiff ? The plaintiff’s ground did not exist as a separate parcel until the conveyance to him. How could the right to pass into second street along the ground marked as an *152alley, pertain to this ground? It is supposed the call in the deed affects this question, but we cannot see how it does. The call in a deed for a non-exisling object, neither creates nor passes any interest in such object. Besides, the call was to designate the outer limit of the grant and not to convey any thing beyond it. If there was fraud practised upon the plaintiff in the sale and conveyance to him, this action will not afford remedy against fraud.

The plaintiff submitted to a non suit.