| Mass. | Aug 30, 1878
The deed of the Thayers, under which the plaintiff claims, was made and delivered when they were owners of the premises of the defendant. It makes no mention of any rights in the chimney on the adjoining premises. Their deed of the defendant’s premises, given at the same time, contains covenants against incumbrances made or suffered by the grantors, and of warranty against all persons claiming under them. Each deed describes the lot of land conveyed by metes and bounds, without mentioning any buildings. The grantors having built the houses and the chimney, and being owners of both parcels, these covenants are as strong an expression of intention to convey the defendant’s premises free of the easement claimed by the plaintiff as covenants of general warranty would have been. The words, “and all rights, easements, privileges and appurtenances to the said land belonging,” in the deed of the plaintiff’s premises, are of no effect to carry the easement in question, because no easement existed, while the fee of both parcels was held by the same owners. Ammidown v. Granite Bank, 8 Allen, 285. Moreover, the title conveyed by that deed is not older than the title conveyed by the deed of the defendant’s premises, which covenants against any incumbrance created by the grantors. If, therefore, an easement to use the chimney was created in favor of the premises of the plaintiff, it was created by implication, as being absolutely necessary to the enjoyment of the estate.
We are aware that it has been held in some English cases, that a deed of premises carries the right to continue to enjoy, as easements, all privileges or conveniences in and upon adjoining lands of the grantor, which were apparent, and had been used by the grantor in connection with the premises before the conveyance ; that the conveyance is a conveyance of the premises “ as
It is a well established and familiar rule that deeds are to be construed as meaning what the language employed in them imports, and that extrinsic evidence may not be adduced to contradict or affect them. And it would seem that nothing could be clearer in its meaning than a deed of a lot of land, described by metes and bounds, with covenants of warranty against incumbrances. The great exception to the application of this rule to the construction of deeds is in the case of ways of necessity, where, by a fiction of law, there is an implied reservation or grant to meet a special emergency, on grounds of public policy, as it has been said, in order that no land should be left inaccessible for purposes of cultivation. This fiction has been extended to cases of easements of a different character, where the fact has been established that the easement was necessary to the enjoyment of the estate in favor of which it was claimed.
In this Commonwealth, grants by implication are limited to cases of strict necessity. Carbrey v. Willis, 7 Allen, 364, and cases cited. Randall v. McLaughlin, 10 Allen, 366. The case of Pyer v. Carter was denied by Lord Chancellor Westbury in Suffield v. Brown, 4 De G., J. & S. 185, which has been since recognized as containing the correct doctrine. Grossley v. Lightrwler, L. R. 2 Ch. 478. Watts v. Kelson, L. R. 6 Ch. 166.
The case seems to have been tried in the Superior Court on the assumption by both parties that the obstacles, if any, to the erection of a chimney on the plaintiff’s premises, were the same when the Thayers conveyed as when the chimney in question was taken down, and the question to the jury, and the instructions, appear to have been framed in accordance with that assumption, and without any objection or suggestion to the contrary by the plaintiff. We cannot, therefore, consider the objection now made, for the first time, that the question of necessity was to be determined by the state of things existing when the conveyance was made by the Thayers.
In this view of the case, it appears that the jury found that the use of the chimney was not necessary to the enjoyment of
It is unnecessary, therefore, to consider the question raised by the refusal to give the instruction asked for by the plaintiff. On the facts found by the jury, no easement in favor of the premises of the plaintiff having been created,' the ruling as to how such easement could be determined, if it existed, became immaterial. Exceptions overruled.