257 Mass. 499 | Mass. | 1926
This is a bill in equity brought to restrain the defendants from interfering with the plaintiff’s alleged right to take water from a spring on the defendants’ premises.
The bill alleges that the plaintiff on April 25, 1925, was the owner of a farm upon which was situated a farm house; that on that date he conveyed to the"defendants by warranty deed a portion of the premises, including that part upon which the farm house was located; that the plaintiff has adjoining the land conveyed a tract known as the “Bungalow Lot” on which is situated a bungalow designed as a summer
The recital in the deed that the grantor reserves to himself and his heirs and assigns “one-half of the spring of water which now runs to the buildings on said premises” is a reservation. Bean v. French, 140 Mass. 229. The effect of the reservation is to create an easement in the spring appurtenant to the bungalow and the land upon which it is situated. Goodrich v. Burbank, 12 Allen, 459. Willets v. Langhaar, 212 Mass. 573. The reservation in the deed by the plaintiff to himself of one half of the spring results in the plaintiff and the defendants being the owners in fee as tenants in common of so much of the land out of which the spring issues as is necessary for the reasonable use of the
The defendants in their brief “presume that the plaintiff has an implied right to go to the spring and get water” but contend that the “plaintiff ought not to be permitted to impose any burden on the defendants’ land not included in the reservation.” Such a limitation of the plaintiff’s right construes the language of the reservation too narrowly. The plaintiff is entitled to take water from the spring in any reasonable and convenient manner. The bill alleges and the demurrer admits that the defendants have refused to allow the plaintiff to come upon their premises under any circumstances without paying $50. The plaintiff under the deed is not only entitled to the use of the water but is part owner of the land from which the spring issues. As such owner he will be unable to exercise his right to the use of the water in any reasonable manner unless he is able to convey it from the land of the defendants. In these circumstances the plaintiff, in the absence of an express right of access, would have a right of way by necessity to enter upon such land in a reasonable manner to obtain the water, as he is unable to reach the spring in any other way. Nichols v. Luce, 24 Pick. 102, 104. Davis v. Sikes, 254 Mass. 540, 546, and cases cited. Seymour v. Lewis, 2 Beas. 439. “. . . the necessity thus required is not an absolute physical necessity, but merely such a reasonable necessity for the use and enjoyment of the dominant estate as has been found to exist here.” Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 410. See Orpin v. Morrison, 230 Mass. 529, 533. The terms of the grant are to be construed in the light of the facts as they appear in the record, including the manner in which the water had been carried to the plaintiff's bungalow before the execution of the deed and the purpose which the parties had in mind. Atkins v. Bordman, 2 Met. 457, 464. Barrett v. Duchaine, 254 Mass. 37, and cases cited.
The grounds of demurrer, that the plaintiff’s bill does not state a case which entitles him to relief in equity and
The interlocutory decree sustaining the demurrer to the bill must be reversed.
Ordered accordingly.