| Me. | Jun 15, 1841
The opinion of the Court was delivered by
It was the established law of the State of Massachusetts, while this State composed a part of it, that every existing right to, or interest in land granted, that deminished the value and was consistent with the passing of the fee, was an incumbrance. Prescott v. Freeman, 4 Mass. 627" court="Mass." date_filed="1808-11-15" href="https://app.midpage.ai/document/prescott-v-trueman-6403315?utm_source=webapp" opinion_id="6403315">4 Mass. R. 627. The plaintiffs had no opportunity by an examination of the land to learn, that a county road had been legally laid out through it. It was not opened, and yet they might be subjected not only to the loss of land, which they supposed they had purchased, but to unexpected expenses in fencing it. The case forcibly illustrates the justice of the decision, which regarded a highway as an incumbrance. After the conveyance and before the suit, the county commissioners made an alteration and directed, that “ so much of said road as shall be rendered unnecessary for public use by said alterations be discontinued.” This had the effect to discontinue all the road over the land of the plaintiffs’ as first located, except so much of it as continued to be a part of the road after the alteration ;
It was the existence of the public easement, which constituted the incumbrance at the time of the conveyance; and before the suit the public ceased to have any such easement; and the incumbrance consequently ceased to exist as to all that part, which was discontinued. According to the second position in the agreed statement the plaintiffs can recover only $12,50 and interest thereon; being the damages'as agreed upon as compensation for the existing incumbrance.
It is said, that the word incumbrance, as there used, should be construed to mean the same as right of action. If such a construction were admissible, it could have very little influence upon the result; for the plaintiffs could recover nothing more than nominal damages for a breach of covenant by an incumbrance no longer existing and not removed at their expense. And it cannot be considered as so removed, for they had a legal right to compensation for their land taken for the road as altered. And if they fail to obtain damages for such new incumbrance since the conveyance, it must be occasioned by their neglect to apply in season or to take the proper measures to enforce their rights.
Judgment for plaintiffs.