A person cannot create an easement by describing the land conveyed as bounded by way if s/he does not own the land on which the way is supposed to be located.  In other words, a person cannot create a right of way over another’s land[i].  The grant of the right of way is generally found only to include light and air sufficient for purposes of the way[ii]

In Bitello v. Lipson[iii], the claimant purchased a tract of land that included a right of way for ingress and egress.  His grantor conveyed two other adjoining tracts to two different buyers.  The conveyance to buyer of the third tract was subject to the claimant’s right to the easement.  The buyer constructed a bay window on the side of his dwelling that projected out and over the right of way.

The question was whether the claimant was entitled to unrestricted use of the easement and a right of uninterrupted access to light and air over the easement.  The court observed that there was no implied or express grant of a right to light and air over the right of way.  The bay window was not a physical obstruction to the proper use of the right of way.

The court found that the tallest vehicle available can still pass under the window and that it was not reasonable to assume that the claimant will attempt to bring any larger vehicle.

[i] Dorman v. Bates Manuf’g Co., 82 Me. 438

[ii] Bitello v. Lipson, 80 Conn. 497 (Conn. 1908)

[iii] Id.