| Mass. | Jan 26, 1877
By the deed of 1864, Rand conveyed to Whit-comb the right to use the passageway, twenty-six feet wide, extending in a straight line from Spring Street to Belmont Street. There was no controversy as to the terminus on either street. The northerly line of the way was marked by fences erected under the direction of Rand, both before and after this deed was given. Rand then owned all the land south of the way, except the lot conveyed by him to Conant in 1850. After Rand’s death, the tenant purchased from his heirs a lot on the southerly side of the way, adjoining Conant; and conveyed portions thereof to the demandants respectively. The land thus conveyed, after the location of the way and the erection of the fences, must bound on the way as then established. The way located by Ranid, twenty-six feet wide from the fences on the northerly side, subjected that strip of land to an easement, and subsequent deeds by Rand or his heirs of land on the southern side, bounding on the way, could give the grantees no right to encroach upon it. The location bound Rand and those claiming under him.
The rulings of the presiding judge were right. It was immaterial whether the measurements of boundary lines in deeds given by Rand to Conan* and Bugbee, before 1864, tended to show that the location of 1864 was not on the line of the passageway. While that location could not change the way so as to affect conveyances previously made, it was conclusive against Rand and all claiming land under him, on the south side of the way, by subsequent deeds. Exceptions overruled.