Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-03-10
COURT DECISIONS.
DIGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
vlRcINIAN PILOT.
Notes of Cases Recently Decided,
Which are Of Interest to
Our People.
UHL v. C. r. r. co.
O11H v =. n. IL. ".
Supreme Court of Appeals, West Va,
November rs, 1892


If A LANDOWNER CONVEYS A
RIGHT OF WAY IN FEE TO A
RAILROAD COMPANY OVER HIS
LAND. AND AFTERWARDS
FINDS NATURAL GAS UPON HIS
LAND. THE LAW WILL IMPLY
A RIGHT OF WAY OF NECESSITY
FOR HIM ACROSS THE LAND OF
THE RAILROAD COMPANY TO
PIPE THE GAS TO HIS HOUSE.
The court says:
The appellant on the 18th of April.
1852, granted strip of land 90 feet wide,
dividing his farm, to the appellee, as
right of way for its railroad, without
reservation, except, as Il part of the
consideration. that the grantee should
make good roadway or crossing
where the private road of said Uni
crosses said railroad. and also put in
or build cattle stops wherever said
railroad comes from one field to the
other. This grant has been held, in
TINS court, in case decided herewith
between said parties, to invest the ap-
pellee with the fee simple of said strip
OF land. The appellant at the time
of his grant knew nothing with re-
gard to his land being underlaid with
oil and gas, and made no reservation
iSCPCSeIiS ttlt Su1lle. AIuS IN DaNlDR
quantities has been found OH the land
on the opposite side of the right of way
from his dwelling house and appellant
sought to convey it under the railroad
through pipe for use at his residence
The appellee refused TO permit him to
do so. and he obtained this Injunction
He claims the right TO do so I'd be-
cause of the railway or crossing before
mentioned: (2) by implication of law,
through necessity. 1t would not GER
tainly, come under the first, for the
reason that this is n crossing over the
railroad. and was intended to be the
customary farm roadway. Is there n
way implied by necessity? Certainly
not as to the oil, for it can be secured
In barrels or tanks. or reduced to such
condition that 1t can be transported
across the present roadway without the
use of an underlying pipe line. AT
least. there is noting to show such ne
ccssity disclosed by the record. Gas
is entirely different. The only way it
can be conveyed from one point to
another. so as to be OF practical utility,
is through confinement in pipes.
Otherwise, it is lost, although when
properly conveyed, and used for heating
and lighting. 1t is of the greatest value
and comfort. 1t is being produced on
the appellants land. He cannot con-
vey 1t to his dwelling house, and get
the benefit Of it, without crossing the
right of way donated by him to the
appellee. The appellee refuses to allow
him to do SO. for love or money, except
probably at an exorbitant price. The
excuse is that it will endanger the
running of it's cars. The court will
take judicial notice of the fact (being
common knowledge to all mcn) that
gas can be so confined in pipes that it
can be transported across this right
of way in perfectly harmless manner.
In Jones, Easem. sec. 3l5, 1t is said
that: "a right of way is never implied
because it is convenient. 1t must be
necessary for the reasonable enjoyment
of the estate, that is. the beneficial
use and enjoyment. Even where one
conveys to Il railroad company q right
of way through his land, he has Il way
of necessity over the land conveyed, so
as to reach n part that is curt off by the
railroad" This is n plain case of a
dog in the manger. What it cannot eat
1T will not let others eat. 1t is certain
ly matter OF qualification that the
law permits the polite removal of TIE
obstruction. The cases relied on by
appellee,s-ee unSal-ar n-nnt against but
rather in favor of. this conclusion.