276 Mass. 318 | Mass. | 1931
This is a petition to register title to a tract of land, hereinafter called the locus, situated about two hundred feet west of a public way, known as Turnpike Street, in Canton. The respondent is the owner of three
The judge of the Land Court, who took a view of the premises, found that there is a well defined way over the
The petitioner contends that the way granted in the deed of Elias Tucker to Aaron Tucker was not the way extending through the locus but was another way. The evidence
It is contended by the petitioner that the grant of a right of way by the executor of Samuel Tucker was in excess of his powers. The license was in general terms "to sell and convey so much of the real estate of'the said deceased as will produce said sum ($79.38) with incidental charges.” The sale as made under the license was valid, Rev. Sts. c. 71, Yeomans v. Brown, 8 Met. 51, 58, Norton v. Norton, 5 Cush. 524, and the conveyance of lot C with a right of way was not broader than the powers conferred by* the license. In Baker v. Willard, 171 Mass. 220, the license empowered the executor to sell only a specific parcel of real estate.
In 1863 the land now owned by the petitioner was partitioned by order of the Probate Court among the heirs of Samuel Tucker. The owner of lot C assented to the return of the commissioners. No mention of the right of way appurtenant to lot C was made in the petition or in the return
No evidence of abandonment was introduced. Mere nonuser of a way created by grant would not constitute abandonment. Willets v. Langhaar, 212 Mass. 573, 575. Dubinsky v. Cama, 261 Mass. 47, 57.
The petitioner contends that if the way granted by the executor of Samuel Tucker was the road passing through the locus then the easement was in gross and was not appurtenant to lot C; that the easement being in gross was not-assignable and was terminated by the death of the grantee. The only apparent purpose of the grant of a way was to furnish access to and egress from lot C in so far as the grantor was able to accomplish this result. George v. Cox, 114 Mass. 382, 387. If lot C were contiguous to the locus the easement would clearly be appurtenant. Mendell v. Delano, 7 Met. 176. Dennis v. Wilson, 107 Mass. 591. Handy v. Foley, 121 Mass. 258. Brooks v. West Boston Gas Co. 260 Mass. 407, 409. “An easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate.” Willets v. Langhaar, 212 Mass. 573, 575. No sufficient reason appears for construing the grant of the right of way as an easement in gross.
There seems to be some conflict of authority on the question whether an easement appurtenant to a dominant estate can exist over an estate not adjacent thereto. In this Commonwealth it has been held that a way by necessity may exist over a lot not contiguous to the dominant estate in a case where the owner of the dominant estate had a right of way by prescription over the intervening land. Leonard v. Leonard, 2 Allen, 543, 545. The somewhat ambiguous statement in Dennis v. Wilson, 107 Mass. 591, 593, does not
In Goodrich v. Burbank, 12 Allen, 459, the court, quoting from Lonsdale Co. v. Moies, 21 L. R. 658, 664, said at pages 461 — 462: “If I have a spring, I may sell the right to take water from it by pipes, to one who does not own the land across which the pipes are to be carried, and I may either restrict the use to a particular house, or not, as I please. -It is true the grantee cannot make the grant useful without acquiring from the owner of the intermediate land the right to lay pipes therein, nor can he use the water in a house until he obtains the right to possess that house. But these may be acquired afterwards. Incorporeal rights may be inseparably annexed to a particular messuage or tract of land, by the grant which creates them, and makes them incapable of separate existence. But they may also be granted in gross, and afterwards, for purposes of enjoyment, be annexed to a messuage or land, and again severed therefrom by a conveyance of the messuage or land, without the right, or a conveyance of the right without the land.” Mahon v. Tully, 245 Mass. 571, 576. It has been held in many jurisdictions that an easement may be appurtenant to land although the servient tenement is separated by other lands from the dominant tenement. Riefler & Sons v. Wayne Storage Water Power Co. 232 Penn. St. 282. Anania v. Serenta, 275 Penn. St. 474. Cady v. Springfield Water Works Co. 134 N. Y. 118. Thomas v. Brooks, 188 Ky. 253. The cases of Phoenix National Bank v. United States Security Trust Co. 100 Conn. 622, and Bruns v. Willems, 142 Minn. 473, adopting the same rule, present situations resembling in many respects those in the case at bar.
From the trend of our own decisions and what seems to be the prevailing view in other jurisdictions we think the better rule is that a right of way may be appurtenant to land even though the servient tenement is not adjacent to the dominant, and even though it does not appear what the grantee’s rights over the intervening land, if any, may be. A grantor who has included in his grant a right of way over his remaining land to enable the grantee to pass over a part of the distance from a highway to the parcel granted ought not to be permitted to say that the grant of the easement was invalid or not appurtenant merely because the grantee or his successor has not shown whether or not he has acquired a legal right of way over the land intervening between that sold to the grantee and that retained by the grantor.
The trial judge was right in making no ruling or finding as to whether the respondent has or has not as appurtenant to lot C a right of way by either express or implied grant
No error appears in the rulings or refusals to rule to which exceptions were saved.
The petitioner filed both an appeal from the decision and a bill of exceptions which was allowed by the trial judge; since all questions raised are presented by the exceptions, that has been considered and the appeal is to be dismissed.
Exceptions overruled.
Appeal dismissed.