184 Mass. 419 | Mass. | 1903
At the time the defendant obtained title to her land the drain was not in existence and the deed under which she holds is silent as to any right to lay and maintain such a drain through the land of the plaintiff. Neither does it appear that this alleged right whereby the defendant would be entitled to connect her premises with the public sewer, can be said to arise by implication. See in this connection Bumstead v. Cook, 169 Mass. 410.
The case falls within the well recognized general rule that where an easement is not set out in the instrument under which the party claiming the privilege holds title, it must be shown to be actually in existence and connected with the estate conveyed in order to pass as appurtenant by implication. Philbrick v. Ewing, 97 Mass. 133. Bass v. Edwards, 126 Mass. 445, 449.
In order therefore to maintain her claim she is necessarily obliged to rely on the clause in the deed to the plaintiff’s grantor which is in these words, “ and reserving to the lot next southerly owned by Griffin the right to enter a drain into a private sewer now on said land,” and the rights of the parties must be determined on the construction to be given to this clause.
At the date of this deed so far as the facts appear by the record no such right had been granted to or prescriptively acquired by the defendant, and which might be preserved for her use by the language used, on the ground that thereby an exception was created and hence the easement claimed was excepted from the grant. But they must be construed as an attempt to vest in the grantor a new interest or right that did not before exist and therefore constitute a reservation rather than an exception. Wood v. Boyd, 145 Mass. 176. White v. New York & New England Railroad, 156 Mass. 181.
As the defendant was not a party but a stranger to the deed she could gain no rights under the reservation which enured solely to the grantor, and for this reason she did not acquire an easement under it. Murphy v. Lee, 144 Mass. 371, 374.
It follows that the decree entered in the Superior Court was right and should be affirmed.
Recree affirmed.
