126 Mass. 196 | Mass. | 1879
The plaintiff’s right to maintain this suit depends upon the construction of the clause in the deed recited in the defendant’s plea.
We are of opinion that this clause must operate as a reservation, or by way of implied grant. The operation of an exception in' a deed is to retain in the grantor some portion of his former estate, which by the exception is taken out of or excluded from the grant; and whatever is thus excluded remains in him as of his former right or title, because it is not granted. A reservation or implied grant vests in the grantor in the deed some new right or interest not before existing in him. Shep.
.The clause we are considering does not merely reserve to Lovejoy a right of way and of maintaining aqueduct logs through the land granted. The privilege which the parties intended should vest in him was the right of passing and repassing, and of maintaining his aqueduct logs through a culvert to be built and kept in repair by the grantee. The provision that the grantee shall build and keep in repair the culvert is an essential part of the grant, and clearly indicates that the intention of the parties was to confer upon the grantor a new right not previously vested in him, and which, therefore, could not be the subject of an exception.
It is well settled that, generally, the same rules of construction apply to a reservation or implied grant as to an express grant. In this case, the words used were, “ reserving to myself the right of passing and repassing, and repairing my aqueduct logs forever through a culvert.” This gave only an estate for life to Lovejoy. To create an estate of inheritance by deed to an individual, the land must be conveyed to the grantee and liis heirs, and these necessary words of limitation cannot be supplied by other words of perpetuity. As stated by Wilde, J., in Curtis v. Gardner, 13 Met. 457, “ a grant to a man to have and to hold to him forever, or to have and to hold to him and to Ms assigns forever, will convey only an estate for life.” See also Dennis v. Wilson, 107 Mass. 591.
It is not necessary to decide whether the easement created by the reservation was appurtenant to the remaining land of Love joy. Assuming it to have been so, this could not have the effect to extend its duration. Lovejoy might assign it, if appurtenant, by a deed of the remaining land, but it would expire with his life, whether assigned or retained by him.
It follows from these considerations, that tMs bill cannot be maintained Lovejoy having died before this smt was commenced, the easement had ceased to exist, and the plaintiff is not entitled to the relief prayed for in the bill. The defendant’s plea, therefore, is sufficient,
Bill dismissed.
