180 Mass. 521 | Mass. | 1902
This is a petition for partition by way of sale, under Pub. Sts. c. 178, § 65; St. 1894, c. 104. The Probate Court ordered the sale and on appeal the decree was affirmed subject to the exceptions and appeal of the respondent Kennard. The single justice who tried the case reported his findings of fact, and the exceptions disclose more or less of the evidence. The land is about twenty acres, ten acres of which is a wet cranberry bog. The upland abuts upon Long Pond, which is a great pond. Nearly all of the value is in the bog, and that value depends very largely upon the certainty and ease with which it can be flowed, and thereby be kept from frost, worms and weeds. If the bog were equally divided, the several parts could not be flowed as they should be except by consent of the other owners.
Before the passage of St. 1888, c. 318, and for many years, the parties as abutters on Long Pond have used the water to flow the bog without objection, and seemingly as of right. They have not obtained a formal license from the board of harbor and land commissioners, but it is found that the use of the water is not injurious to the public or to other propérty owners, and that the consent of the board easily could be obtained. It is not found, and it is not likely, that the parties have a right by prescription to draw the water. Attorney General v. Revere Copper Co. 152 Mass. 444. Pub. Sts. c. 196, § 11. It is not found, and it is not likely, that the use by the parties did not exceed their rights as riparian proprietors. Potter v. Howe, 141 Mass. 357. Attorney General v. Revere Copper Co., supra. Fernald v. Knox Woolen Co. 82 Maine, 48. The right when it exists is an easement although it may be created in gross, Goodrich v. Burbank, 12 Allen, 459, but there is no such thing known to the law as an inchoate easement standing merely on quasi possession acquired by user continued for some time but not long enough to gain a title. Greenhalgh v. Brindley, [1901] 2 Ch. 324, 328. Bonner v. Great Western Railway, 24 Ch. D. 1, 9. Compare Bound v. Brooking, T. Jones, 148 ; Anonymous, Cro. Car. 499; Sands v. Trefuses, Cro. Car. 575; Slackman v. West, Cro. Jac. 673. Therefore it must be assumed that the parties have no legal right to the use of the water.
The considerations which determine whether land can be divided advantageously no doubt have reference mainly to the physical conditions of the land to be divided, but the advantage or disadvantage generally must be pecuniary. Vesper v. Farnsworth, 40 Wis. 357, 361, 362. From this point of view practical certainties may be of great importance although based upon no legal right. No doubt it is held that when title is taken to
Exceptions overruled; decree affirmed.