Page:Harvard Law Review Volume 12.djvu/442

422 HARVARD LAW REVIEW. review the decision below as to the existence or scope of a contract whenever one is claimed to have been impaired; but it has seldom as- serted this right except when the decision below did in terms give effect to a statute. See New Jersey v. Wilson^ 7 Cranch, 164; Bridge Prop'rs V. Hohoken County, i Wall. 46. If Mr. Justice Peckham's reasoning is sound, a broad field is opened for evasions of the constitutional provision. But the reasoning is too stilted. The court has a right to look at the whole record and at all the circumstances. It appeared that throughout the principal case the bone of contention had been the vaHdity of the later statute, and the court could not overlook the glaring fact that the State court did give effect to that statute, although it did not say so. This view is properly a broad one, consistent with the subject with which it deals. Ways of Necessity — what are they ? — It is a common impression that a way of necessity may be demanded wherever a landowner finds that he has no access to his property except over the lands of others. That this impression is mistaken is shown by the case of Ellis v. Blue Mountain Ass'n, 41 Ad. Rep. 856, decided by the Supreme Court of New Hampshire. There the plainti£f owned a farm situated in the centre of Corbin Park — a game preserve. A public highway running completely through the park was the sole means of access to the farm. The owner of the park pre- vailed on the town officials to exercise their statutory authority and abolish this highway; whereupon the plaintifif filed a bill to have a way of necessity laid out and to have the park owner enjoined from allowing his wild animals to trespass on the plaintiff's land. The injunction was granted, but the way was refused. The result is peculiar. The farm is carefully protected for the plaintiff's advantage, but he is unable legally to set foot on it. The court place the decision on the ground that while necessity may serve as a basis for an implied grant or reservation, yet where, as here, there can be no question of grant or reservation necessity in itself cannot entitle to a way. In contradiction of this reasoning, the early English cases laid emphasis on the bad policy of tying up lands, and granted ways on the ground "that the public good required that the land should not be unoccupied." Button v. Taylor, 2 Lutw. 1487. Later this reasoning was doubted by Lord Kenyon in Hawton v. Frearson, 8 T. R. 50; and in Bullard v. Harrison, 4 Maule & S. 317, Lord Ellen- borough held that, where no grant could be implied and where no pre- scription could be alleged, no degree of necessity could create an ease- ment. The English law is settled in accordance with this case. In America the courts almost without exception have taken the same view. Tracy v. Atherton, 35 Vt. 52. As a matter of principle, the accepted doctrine seems correct. It is harsh dealing to allow one person to impose such a burden upon an utter stranger for private advantage, and without compensation. It is hard to find a principle that will justly determine which of several surrounding landowners, all free from fault, must give gratis to the owner inside. The cases of grants implied from necessity can give no support to the conten- tion against the principal case; for in these cases the way is not given because of the necessity in itself, but because the necessity has come to be considered proof that a way was intended to pass as incident to the