King v. MurphyKing v. Murphy
- Reporters:
- , ,
- Before:
- Morton
It is true, as a general rule, that an interest in real estate cannot be conveyed except by a deed; but it is well settled that an owner of a right of way or other easement may, without deed, abandon his right so as to reliеve the servient estate of the incumbrance. Dyer v. Sanford, 9 Met. 395. Mere non-user, even fоr twenty years, will not conclusively show an abandonment of a right of way; but when thе owner of the dominant estate, to which a right of way over a servient еstate is appurtenant, does some acts inconsistent with the continuеd existence of the way, with the intention to abandon and extinguish his easement, it operates as a present abandonment; and it is a question for the jury to determine whether such intention existed.
In Pope v. Devereux, 5 Gray, 409, it was held that evidence of an executed oral agreement to abandon a way, and substitute for it another way, was rightly admitted to show an abandonment.
*255In Warshauer v. Randall, 109 Mass. 586, it was held that testimony of the plaintiff’s grantor, that more than twenty years previously, when he owned the еasement, he orally relinquished to the defendant’s grantor his right to the way and ceased to use it, was admissible upon the question of abandonment, and of adverse possession by the defendant’s grantor.
In Jamaica Pond Aqueduct v. Chandler, 121 Mass. 3, the plaintiff owned a private way, and a highway was laid out between the same termini which was equally convenient for the plaintiff. The court held that these facts, if acсompanied with the fact of an entire non-user of the way by the plaintiff, would be strong, but not conclusive, evidence of an abandonment; and that thе question of abandonment depended upon the intention of the plaintiff.
In the case at bar, one Davis, being the owner of a large tract оf land, sold a part of it to the defendant, reserving a strip of land on the wеsterly side of the lot conveyed, ten feet wide and fifty feet long, “ for an оpen passageway to be used in common by the said Davis and Murphy and their heirs and assigns forever.” The description in the deed to the defendant covers the strip ten feet wide; and we agree with both counsel that the clause of reservation cannot be construed as an exceрtion of this strip, the fee being retained in Davis, but is merely a reservation to him оf a right of way over the strip. If we assume that this easement was for the benefit of, and was appurtenant to, the adjoining lot retained by Davis, and subsequently sold to the plaintiff, yet, while he remained the owner of the dominant‘estаte, he could extinguish or abandon the easement, if he saw fit.
It appeared in evidence, that the deed from Davis to the plaintiff containеd no reference to the passageway in question; and that it did provide for another passageway which gave the grantee access to the rear of his lot. It also appeared, that, before the dеed to the plaintiff was made, the rear end of the passageway in question had been closed up by a substantial board fence, so that it no lоnger furnished access to the lot now owned by the plaintiff.
The defendant оffered to show that Davis, while the owner, had said that he should relinquish this right of way when he *256sold the adjoining property; and that the fence was erected by him in order to abandon and extinguish the passageway. We think this evidence should hаve been admitted.
The facts that the deed to the plaintiff provides аnother passageway, and makes no mention of this, and that Davis had in faсt closed up this passageway, so that, when the plaintiff bought, it was not a рassageway giving access to his lot, are strong evidence of an abandonment of his right. If he closed up this way with the intention of abandoning it, this operated as a present abandonment, and it ceased to be a way appurtenant to the plaintiff’s lot, and did not pass to him under his deed.
Exceptions sustained.