Jones v. Adams

162 Mass. 224 | Mass. | 1894

Allen, J.

This ease presents no question of difficulty. On the facts reported, the plaintiff is entitled to a decree, enjoin, ing the defendants from preventing him from clearing out the drain. An easement of drainage was created by the reservation ; Claflin v. Boston & Albany Railroad, 157 Mass. 489, 493; and it passed by the deed to the plaintiff without express words. Barnes v. Lloyd, 112 Mass. 224.

The various suggestions and arguments of the defendants may be briefly dealt with.

The defendants contend that the plaintiff must prove that there was a drain across the easterly corner of the granted premises, and that said drain still exists, and that it had been used to drain the cellars of the two buildings on the plaintiff’s lot. That is so; but all this appears by the finding of the judge. The fact that the judge could not fix the line of the drain on the defendants’ land, or the situation of the cesspool, does not show that no drain or cesspool existed. There is no reason to suppose that there were two drains across that corner of the defendants’ lot, and the plaintiff by digging on his own land can ascertain where the drain enters the defendants’ land, and its further course can be traced by digging, without undue disturbance of the defendants’ other land.

The defendants contend that the reservation is of a right “ to use the drain across the easterly corner ” of the lot, and that the right now claimed is different, viz. to use a drain which ends in a cesspool on the defendants’ premises. If it were conceded that by the correct use of English the words “ across the easterly corner ” imply that the drain emptied at or beyond the farther line of the lot conveyed, so trivial an error in strictly exact phraseology would not nullify the reservation of the easement.

The covenants of freedom from encumbrances and of warranty apply to the estate as granted, i. e. subject to the right of drainage. Wood v. Boyd, 145 Mass. 176. Brown v. South Boston Savings Bank, 148 Mass. 300, 304.

The reservation being express, there is no occasion to consider the doctrine of easements reserved by implication.

The enlargement of the drain by Stewart during his ownership, which was made at the joint expense of himself and the plaintiff, did not destroy the identity of the drain, nor defeat the plaintiff’s right to use it.

The findings by the judge negative the idea of an estoppel upon the plaintiff to assert his right to use the drain.

The evidence sufficiently shows a denial by the defendants of the plaintiff’s right.

Decree for the plaintiff.