Hancock v. Wentworth

| Mass. | Mar 15, 1843

Hubbard, J.

A question was made on the trial of the issue in this case, whether the tenant had acquired a title to the demanded premises by disseizin ; but as the jury have found a verdict for the demandants on this point, under the ruling of the court, the correctness of which is not denied, the only subject of inquiry which remains is, whether the tenant can success fully defend against the present action by force of the easement originally granted to him in the demanded premises.

The argument of the counsel for the tenant is substantially this ; that it is a controversy as to the reversion of the land which is now demanded, and therefore, while the right to the easement exists, the demandants cannot oust the tenant from his possession of the premises : That in the grant to him, the right was not severed, and a particular privilege given to each estate in the row of tenements, of which the tenant’s was one ; but that it was an easement granted over the whole land, to enjoy a privilege in each of the outhouses upon it; and that, as it appears by the facts in this case that the easement is only suspended, the demandants cannot enter and disturb the possession of the tenant : That here has been no act done by either party, by which the right is extinguished ; that there is no evidence of the tenant’s intention to relinquish his right, and no non-user for twenty years ; and that if the city were to discontinue Blackstone Street, which was laid out against the will of the tenant, his rights, so far as they are now' impaired, would be restored.

But to this argument of the tenant against sustaining the present action, however plausible it may appear to him, there are substantial objections. And first, the right of the demandants to the fee in the demanded premises, and the right of the tenant to an easement in them, are rights independent of each other, and may well subsist together. A man cannot have an easement in his own estate, except only in a few cases where it may be suspended, when he holds the estate in different capacities and under distinct titles, one of which consists of an easement. But where a man acquires an estate, by an indefeasible title, in which he had previously an easement, the easement is merged in the fee and cannot be revived. But no question arises here in regard to the easement. A recovery therefore by the demandants will not affect or disturb the easement of the tenant (if he has one) in the premises ; while a recovery is necessary to protect the demandants’ rights, which otherwise, in the situation in which the estate now is, may be lost by disseizin. And it is no objection to a recovery in a real action, that the demanded premises or a part of them have been laid out as a common highway ; for such laying out is but the creation of an easement, and does not affect the title to the fee of the estate. Notwithstanding therefore the tenant may have an easement in the demanded premises, the demandants have a perfect right to maintain this action, as they would have also, supposing the estate re- ■ mained in the same situation in which it was when the original grant was made, or had been restored to that situation.

But we are further of opinion, that the easement claimed in this case by the tenant, to pass over the land to the outhouses which stood on the mill creek, is not merely suspended, but is extinguished. It is said in Bac. Ab. Extinguishment, that “ where a right, title or interest is destroyed or taken away by the act of God, operation of law, or act of the party, this in many books is called an extinguishment.” Co. Lit. 147 b. 1 Rol. Ab. 934, 935. So an easement is one of those rights which may be extinguished or destroyed. In this case it is taken away by act of the law. The constituted authorities of the city, being duly empowered, had a right, if the safety and convenience of the citizens required it, to lay out and open Blackstone Street; and the proprietors of those estates, which were taken for that purpose, had their claim on the city for the injuries sustained by them ; and the tenant among the number. If his easement was disturbed or destroyed, he was as well entitled to remuneration, in proportion to the injury sustained, as the owner of the land.

But it cannot be maintained, in a case like the present, (where the mill pond is converted into land and covered with tenements, the mill creek filled up, and in fact abated as a nuisance, and a new street made, covering part of the demanded premises, and bordered with houses,) that the tenant’s easement is only suspended. It is destroyed by the act of the law ; and in every practical and legal view of the matter, it cannot be revived. And if the tenant has not forfeited his remedy by lapse of time, his claim, for aught which now appears, may be good against the city, for the damages he has sustained ; and this claim cannot be affected by the recovery of the demandants against him in the present action.

We think, upon the facts as proved or admitted, that the de mandants have established their claim and are entitled to judgment on the verdict.

It appeared on the trial of the case, that Thomas Hancock, one of the demandants, had died intestate and without issue, and that John Hancock, another of the demandants, is his sole heir at law. We think, the fact being stated on the record, the wri may be amended, and John Hancock be allowed to claim for his enlarged share.