#### Fritsche, Respondent, vs. Fritsche, Appellant.

*May 26*

*June 21, 1890.*

*Easements: Bight of way: Ambiguity in grant: Practical construction: Alteration of boundaries by re-survey.*

A right of way from the land of the grantee to a public road was, by the terms of the grant, to be “ on or near” a certain boundary line which, at the nearest point (its eastern end), was about twenty rods south of the road. As located by the grantor and used by the grantee for many years, the right of way began to diverge from said boundary line at the western end thereof, and reached the road at a point about north of the eastern end. A re-survey afterwards established the boundary line about three rods further south than the • parties had supposed it to be. *Held,*that the grantee was still entitled to the right of way as originally located and used, and that the grantor could not compel him to follow a route nearer to said boundary line. The grantee was also entitled to a right of way over said three rods by the shortest practicable route.

APPEAL from the Circuit Court for *Orcmford*County.

This action was brought to recover damages for the obstruction by the defendant of a private right of way of the plaintiff. In the year 1814, and before that time, the parties owned in common certain lands in Crawford county. In that year they agreed upon a partition of such lands, and carried out their agreement by the execution of mutual conveyances in accordance therewith. The conveyance by *Charles Fritsehe,*the defendant, to the plaintiff, *Henry Frit-sehe,*contains the following grant: “ The right of way from *267*Henry Fritsehe's*residence to tbe Bridgeport road, on or near tbe line between *Charles Fritsehe*and Peter Barrette.” Tbe land over wbicb sneb right of way runs belongs to tbe defendant. Tbe following plat, as hereinafter explained, sufficiently shows tbe location of tbe right of way, and tbe objects or monuments mentioned in tbe grant:

In 1875, *Charles*erected a fence on tbe dotted line ABO. At that time tbe parties supposed tbe line ABD was tbe boundary between their respective -lands and those of *Charles*and Barrette. Tbe fence diverged from such supposed boundary line at tbe point B, then supposed to be Barrette’s corner, and curved north, and then east, around or up a bill to tbe Bridgeport road at 0. *Henry*used and enjoyed bis right of way along tbe south side of this fence to tbe Bridgeport road, uninterruptedly, and without objection on tbe part of Charles, until 1885. In that year it was found by a survey of tbe lands of tbe parties, wbicb is admitted to be correct, that tbe dotted bne A B I) is not tbe true boundary between tbe lands above mentioned, but •that such boundary bne is about three rods south thereof, on tbe line FGH. Thereupon, in 1886, *Charles*removed tbe fence ABC south, and placed it on tbe true boundary line just mentioned, from tbe point E nearly to G, and then *268deflected it on. Ms own land northeast, to about the line B D, and extended it east nearly to the point D, thence north to E; leaving a way for *Hennj*between the fence and Barrette’s north line and defendant’s east line, to the Bridgeport road at E. *Henry*insisted upon his right to use the old way, and removed the fence, wMch prevented him from doing so, at G-, near Barrette’s corner. *Cha/rles*restored the fence, and thereupon *Henry*"brought this action to recover damages for thus closing the old way. The foregoing facts appear from the pleadings and proofs.

The jury found for the plaintiff, and assessed Ms damages at a nominal sum. A motion on behalf of defendant for a new trial was denied, and judgment for the plaintiff entered pursuant to the verdict. The defendant appeals from the judgment.

Eor the appellant there was a brief by *Webster & Miller,*and oral argument by *D. Webster.*

For the respondent the cause was submitted on the brief of *Fuller & Ward.*

LyoN, J.

There is no controversy concerning the plaintiff’s right of Way from Ms residence to Barrette’s corner, point G. He travels upon Ms own land to that pomt, and is content to do so. The question in controversy is whether he has a right of way from that point to the old way at B, and along the same to the Bridgeport road at C, or whether such right of way extends from G to D, between the plaintiff’s fence and Barrette’s north line, to a point near defendant’s east line, and from thence north, along that line, to the Bridgeport road at E.

The terms of the defendant’s grant of the right of way to the plaintiff are somewhat ambiguous in respect to the location thereof. The location therein specified is “ on or near the line between *Cha/rles Fritsche*and Peter Barrette.” The Bridgeport road on defendant’s land, at the nearest *269point, is probably about twenty rods distant from tbe boundary line between tbe lands of tbe defendant and Barrette. Hence, to answer tbe calls of tbe grant, tbe right of way in question would necessarily have to diverge that distance from sucb boundary line. Tbe question is, "Where shall sucb divergence commence? Hoes it commence near tbe points, G- and B, as claimed by plaintiff, or near point D, as claimed by tbe defendant? Its extension to tbe Bridgeport road at either point is “ near ” tbe boundary line mentioned in tbe grant, within its obvious intent and meaning, and fulfills tbe terms and requirements thereof. ■

By erecting tbe fence between B and C, in 1874, tbe defendant fixed tbe northern limit of tbe right of way. He also permitted tbe plaintiff, without objection, to use and enjoy tbe same along tbe south side of the fence contiguous thereto, for many years. Thus, by bis own voluntary act and long acquiescence, tbe defendant gave a construction to bis grant, and practically explained tbe ambiguity in its terms. Tbe plaintiff adopted that construction by constantly using sucb right of way from B to C along tbe south side of tbe fence. It must be held that sucb right of way is established on that line.

It cannot be doubted that tbe plaintiff has a right of way over some line from bis own land to point B, for without it be would have no use of sucb right from B to C. Over what fine may be exercise this right ? Tbe answer seems plain. He may exercise it over tbe shortest practicable fine extending from bis own land to point B. This is a reasonable adjustment of tbe rights of tbe parties to tbe altered conditions growing out of tbe correction of tbe boundary line, because it saves tbe grant, and at tbe same time does tbe least possible injury to tbe defendant. Tbe defendant has obstructed sucb line by erecting a fence across it, and has thus deprived tbe plaintiff of bis right of way. Hence tbe latter is entitled to recover in this action, and *270tbe judgment in bis favor for nominal damages should not be disturbed.

Tbe material facts in tbe case being practically undisputed, and tbe right of tbe plaintiff to recover in tbe action being clear, tbe numerous exceptions taken by tbe defendant on tbe trial are óf no importance and will not be determined.

*By the*Court.— Tbe judgment of tbe circuit court is affirmed. .