Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1906-07-13
<, BRATTLEBoRO, FRIDAY, July 1a 1906.
THE MANLEY-RETTINe INJUNCTION.
Judge Tyler Denies Rettlng's Motion to
Dlssolve-An Interesting Point Of Law
Discussed In His Decision.

Judge James NJ. Tyler gave his decision
Monday in the case of Jonn V. Manley
jr., vs. John Retting. The case arose
from Rettng's attempt to build a shed
across the alley between the Retting
building on High street and the Green
street bank. The alley leads TO the lower
floor of Manley's house on Green street,
originally bought of Retting, and fur
nshes the only reasonable means Of ac-
cess thereto. When Retting attempted to
build the shed Manley obtained an in
junction to prevent him from doing so,
because It would have blocked the door
leading to the lower floor of his building
Judge Tyler heard the case last
on Retting's motion to dissolve the in
junction. His decision denies the mo-
ton to dissolve. The opinion filed in the
county clerks Office is of some length
and enters into an interesting discussion
of the legal question of an implied grant
of right of way across real estate where
the deed of conveyance is silent as to
such grant. The main question, Judge
Tyler says. is whether there was an i'm
piled grant Of right Of way when Retting
first sold the building in question in
1896 1t is a principle OF common law, the
opinion continues, that right OF way may
arise from necessity in several respects.
Our Vermont courts have held that while
right OF way Is not created by mere
establish the implied grant or reservation
OF such right. The term necessity" as
used in the books Judge Tyler continues,
clearly means more than mere conven-
fence 1t does not mean absolute ne
cessity. IL has often been defined as "a
reasonable necessity"
In the present case a right of way OK
listed from necessity unless the first floor
of Manley's house was accessible by
going down the bank from Green street.
1t is conceded that flight Of stairs down
the bank originally existed by which the
first floor could be reached through "A
doorway, but that door is not now ac-
cessible from Green street and no stairs
have extended down to IL since the con-
veyance was made TO Manley. While it
Is true that a flight OF stairs could now
be built down the steep Green street
bank the stairs could be kept open in
winter only with great difficulty and eN-
pense, and their use by Manley would he
impracticable for such articles as ha
wishes to keep on the lower floor.
Therefore, upon consideration OF the
undisputed facts and OF the law applica-
BILE thereto, II seems to me clear that
while the necessity could not create a
right Of way, the necessity raised an i'm
plication of a grant. The building and
the land wherein IT stands were conveyed
by express words; the right OF way was
conveyed Hol Dy express words Dut by
implication Of law, and that implication
was raised by the necessity Of the case.
The deed was as effectual to convey, by
implication, a right Of way to the grantee
through the alley to the building as its
express terms were to convey the build
ing itself to him for the reason that the
right OF way was essential to the enjoy
ment Of the express grant"
This is the essential point OF the de-
cision, though the opinion considers
briefly the additional claim OF Retting
that the Injunction order ought not TO
be maintained on account OF a provision
in the deed that the premises should not
be converted into a barn or stable. and
that no barns or stables should be
erected thereon-the finding on this point
being that no offensive use OF the
premises is made or ever has been made
by Manley.