George v. Cox

114 Mass. 382 | Mass. | 1874

Morton, J.

The deed from Samuel Cox and others to George H. Fall, dated November 29, 1843, conveys a piece of land in Malden, lying north of the new Methodist meeting-house, “ together with a right of a free passage-way from Medford road by the easterly side of the meeting-house to said lot of land.” A right of a passage-way is a right to pass to and from the road, and the court properly refused to rule, as requested by the defendant, that this deed conveyed to Fall only the right to pass from the road to the land conveyed, and not the right to pass to and from said land. It is clear that the right of way was appurtenant to the lot of land granted by the deed. Its only apparent purpose was to furnish access to and egress from such lot, and there is nothing to lead to the inference that the parties intended it for any other use. Dennis v. Wilson, 107 Mass. 591, and cases cited.

As the deed to Fall annexed this way to the lot of land as an appurtenance, it follows that it passed by the deed from Fall to the plaintiff, as a part of the premises, though it was not specifically mentioned in the deed. Leonard v. Leonard, 7 Allen, 277. Underwood v. Carney, 1 Cush. 285.

The deed does not fix or denue the width of the way granted. But if the grantee, at the time of the grant, practically located the way of a width of eighteen feet, and the grantors then and for a long time subsequent acquiesced in this location, the parties intending to fix the width, this would operate as an assignment of the way, would show what the parties intended by the deed, and would have the same legal effect as if this width had been fixed by the deed. Bannon v. Angier, 2 Allen, 128.

The instructions of the presiding judge to this effect were correct.

It was a question of fact for the jury whether the width of the way had been thus established. If they should find that it had not been established, then the instruction that the grant to Fall gave him a way of convenient width for all the ordinary uses of free passage to and from his land, was appropriate and correct. And the question, in this alternative, what was a suitable width, was properly left to the jury upon all the evidence. Johnson v. Kinnicutt, 2 Cush. 153. The instructions at the trial appear to have been correct.

Exceptions overruled.