( 158 )
1908. with the plaintiff’s use of the cart way on the land , owned, by -the.plaintiff and the defendants in common. It seems to me that the
J.plaintiff has misconceived his action, and that the issues' tried didSingho^Appu n°t cover the actual facts of the case. It seems to me an elementary
o.Hendrick principle that ttm part-owner of a land is entitled'to use it fortaking carts to’ his house which is on the land,, provided, by doing,so, he does not interfere with the enjoyment of the land by hisco-owners. There is nothing in this case as disclosed , by the eyidenceto show that the use of this cart way on .the common land by the.plaintiff causes injury or damage to the defendants, or that theplaintiff has put the. land ; to. use .tp which he, as an owner, Is hotentitled to put it to, Inhere .is' evidence that the plaintiff has adwelling house ontfa£l^d.- " He iV entitled to a right of way to the.house-by foot, as rWellCias by vehicles, .provided such use does notinterfere with the iegitimate Mjoyment of the land by the otherco-owners. There is- eyiden‘ce- that the* defendahts;. have~ ft dwellinghouse on the common land, and that they, in. fact, use a pairtofthiscart way in order to. reach ’ their house.! It seems to me; therefore,upon tiie facts, that the plaintiff was putting the land to a legitimate,use in taking .carts across it to his house. In my opinion thedefendants were not justified in obstructing the plaintiff’s use of thiscart way. I would, therefore, direct that the defendants be orderedto remove the obstruction complained of, and that they berestrained ;from obstructing the plaintiff from the use of the saidcart way, unless and until, by a properly constituted action theyestablish that the use of such a cart way by the plaintiff isinconsistent, with their rights as co-owners. The plaintiff will havethe costs of the- action and of this appeal. I make no order as tothe claim for "damages.
Appeal allowed.