170 Mass. 68 | Mass. | 1898
This is a petition for partition of a strip of land subject to a passageway, which already has been before the court. Crocker v. Cotting, 166 Mass. 183. In the former case
To deal with the last argument first, we discover no such understanding as is supposed. Why the purchasers bought the land under the passageway is pure matter of conjecture. Their right of way was secure. Very possibly their thoughts went no further than to get rid of outside ownership. Probably they did not contemplate partition, because probably they never thought about it, one way or the other. The fact that they would have provided against it if they had thought about it, if established, would not exclude the right to partition as a necessary consequence. But we have no warrant for saying that they would have provided against it. It is equally possible, on the facts before us, that they would have said, when we get rid of outsiders, if it ever becomes convenient to divide the land we will do it, keeping up our right of way. If, indeed, the tenancy in common of the servient land by the owners of the dominant estates had extinguished their several easements by merger, a very different question would be presented from that with which we are dealing. But the easements remained. They would not be extinguished so long as any difference in the quality of the title to the dominant and servient estates made it in any degree for the interest of the dominant owners to keep them alive. “ That unity of title in the dominant and servient estate should operate to extinguish an easement, the ownership of the two estates should be coextensive.” Atlanta Mills v. Mason, 120
The fact, if it be one, that at the time of the original purchase in common passageways often were left in common in partitions under the statute, or that ways often were acquired by such a purchase, is far from sufficient to establish a binding surrender of one of the incidents of ownership. Mere inconvenience is equally insufficient. Partition is a matter of right. Mitchell v. Starbuck, 10 Mass. 5, 12. Potter v. Wheeler, 13 Mass. 504, 507. Warner v. Baynes, Ambl. 589. Parker v. Gerard, Ambl. 236. Turner v. Morgan, 8 Ves. 143, 145, n. 1. Mayfair Property Co. v. Johnston, [1894] 1 Ch. 508. Hanson v. Willard, 12 Maine, 142, 146, 147. Wood v. Little, 35 Maine, 107. Willard v. Willard, 145 U. S. 116. Freeman, Cotenancy & Partition, (2d ed.) § 433. But in the case at bar no inconvenience appears. On the contrary, the convenience of the petitioners will or may be met by partition, and that of the respondents not otherwise impaired than by depriving them of a right to prevent the petitioners doing what they want to do, a right which may have pecuniary value.
Then as to the scope of the statute. Pub. Sts. c. 178, § 1. The language is, “ Persons holding lands as . . . tenants in common may be compelled to divide such lands either by writ of partition at the common law or in the manner provided in this chapter.” This language applies to the present case as plainly as words can, unless for some reason it is narrowed from what it seems to mean on its face. There is no doubt that land is not withdrawn from partition by the fact that a part of it is subject to easement. Weston v. Foster, 7 Met. 297, 299. There is no greater obstacle in the fact that the whole of it is. Suppose that all the parties wanted a partition but could not quite agree on the proportions, and that, as in this case, it was or might be
In England when partition was asked and decreed of a moor, the objection was urged that the moor was subject to rights of common. But Sir William Grant, the Master of the Rolls, answered, “ The rights of common are no objection to the commission ; as that right will not be in the least affected by the partition; which regards only the freehold and inheritance of the soil. A partition never affects the interest of third parties. It is immaterial, whether others have a right over that soil and freehold, which they have in common among them. Those rights will equally remain.” Agar v. Fairfax, 17 Ves. 533, 544. The same thing is said concerning a right of way by Chief Justice Shaw, in Weston v. Foster, 7 Met. 297, 299, already referred to. These considerations appear to us to dispose of the case.
Decree affirmed.