90 Mass. 594 | Mass. | 1864
The deed from Chapin to Steams, under which the tenant claims title, grants, 1st, a tract of land bounded by the railroad on the north and by Spring Street on the east; 2d, “also the water power in Garden Brook,” (which ran south of the railroad, and entered from the east the land first granted,) “ with the right of making a dam adjoining the railroad,” “ and with a right to flow ” a certain distance up the stream, “ and the privilege of deepening the brook below ” for a certain dis tance ; 3d, “ also a tract of land east of Spring Street., bounded northerly on the pond created by said dam.” The words on which the demandant relies as annexing a condition to all the premises granted are inserted immediately after the grant of the right of making a dam, of flowing back the stream above, and of deepening it below, and are as follows: “ Provided said dam shall be so built as to answer for a street to the railroad.”
It is true, as the demandant contends, that “ provided” is an apt word to create a condition. Yet it is equally well settled that it does not necessarily import a condition; and it is often used by way of limitation or qualification only, especially when it does not introduce a new clause, but only serves to qualify 01 restrain the generality of a former clause. Cromwel's Case, 2 Co. 72 a. Co. Litt. 146 b, 203 b, and Butler’s note. A good illustration of this is thus reported in Leonard: “A. made a lease to B. for life, and further grants unto him that it shall be lawful for him to take fuel upon the premises ; proviso, that he do not cut any great trees. It was holden by the court, that if the lessee cutteth any great trees, that he shall be punished in waste; but in such case the lessor shall not reenter, because that proviso is not a condition, but only a declaration and exposition of the extent of the grant of the lessor in that behalf.” 3 Leon. 16.
So in this case, no obligation is imposed on the grantee to make a dam, or set back the water, or deepen the channel. He is simply granted the right of making a dam, and flowing up
But if these words could be treated as creating a condition, it is quite as clear that they would not apply to the land granted, but only to the mode of using the easement granted with the land. If a condition had been thus annexed to that easement, and had been broken, it would not avail the demandant; for an easement appurtenant to land of another, and which cannot be enjoyed except in connection with it, cannot be taken from him by writ of entry, while he has not forfeited and still owns the land. Judgment for the tenant.