Bean v. French

| Mass. | Oct 24, 1885

Morton, C. J.

The defendant claims a right of way over the plaintiff’s lot under the deed from Merrifield to Cobleigh. This deed contains the following clause : “ Reserving however to myself the privilege of a bridle road in front of the house.”

The question in the case is not whether the easement thus created was appurtenant to the land retained by the grantor, but rather what was its duration. Dennis v. Wilson, 107 Mass. 591" court="Mass." date_filed="1871-09-15" href="https://app.midpage.ai/document/dennis-v-wilson-6416556?utm_source=webapp" opinion_id="6416556">107 Mass. 591. It is the settled rule, that, in a deed to an individual, the word “ heir ” is necessary to create an estate of inheritance in the grantee, if he takes to his own use, and not in trust. Buffum v. Hutchinson, 1 Allen, 58. Sedgwick v. Laflin, 10 Allen, 430. The same rule applies to a reservation which operates by way of an implied grant. Curtis v. Gardner, 13 Met. 457. Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159. Ashcroft v. Eastern Railroad, 126 Mass. 196" court="Mass." date_filed="1879-01-21" href="https://app.midpage.ai/document/ashcroft-v-eastern-railroad-6419497?utm_source=webapp" opinion_id="6419497">126 Mass. 196.

When a clause in a deed is strictly an exception, taking out of the grant some portion of the grantor’s former estate, as if one should convey his farm excepting the wood lot, the part excepted would remain in the grantor as of his former title, because not granted. But when the effect of the clause is to create some right or easement not before existing, it is, properly speaking, a reservation, and is generally considered as operating by way of an implied grant.

In the case at bar, Merrifield, while he was the owner of the lots now held by the plaintiff and the defendant, had the right to pass and repass over any part of his estate, but no right of way, properly speaking, existed over the plaintiff’s lot. This easement or servitude in favor of the lot retained by Merrifield was a new interest in real estate, created by the reservation and its acceptance by the grantee in the deed. As the reservation contains no words of inheritance, it follows, according to the authorities cited above, that Merrifield had only a life estate in the easement; and that the ruling of the Superior Court was correct.

Exceptions overruled.