113 Mass. 315 | Mass. | 1873
This petition is filed under the Gen. Sts. c. 134, §§ 49, 50, and the St. of 1873, c. 178, for the purpose of quieting the petitioner’s title in a house and land, and in an easement
By the Gen. Sts. c. 134, § 49, “ any person in possession of real property, claiming an estate of freehold or an unexpired term of not less than ten years,” may file such a petition. But by § 50, “ if the respondent appears and disclaims all right and title adverse to the petitioner, he shall recover his costs.” And the respondent in this case has disclaimed in his answer all right or title to the house and land. This disclaimer is a bar to the petition to that extent.
The St. of 1873, c. 178, declares that “ any person who is in the enjoyment of an easement shall be held to be in possession of real property, within the meaning and for the purposes of ” the Gen. Sts. c. 134, § 49. Enjoyment of an easement is thus made equivalent to possession of real property, for the purposes of this process. But mere right or title to an easement, or to any other interest in real estate, without possession or enjoyment, is not enough to bring a case within either statute. Munroe v. Ward, 4 Allen, 150. This petitioner alleges only that he was to have the right to use and take water from a certain well, and the right to a convenient passage thereto, and does not allege that he was in the enjoyment of such an easement, but, by the unqualified allegation that the land on which the well stands is in the occupation of the respondent, rather implies the contrary. The petitioner therefore shows no ground for invoking the assistance of the court in this form of proceeding. If he has a right to the easement which he claims, and has been prevented by the respondent from enjoying it, his appropriate remedy is by bringing an action at law against the respondent, not by compelling the respondent to bring an action against him.
Judgment dismissing the petition affirmed.