144 Mass. 371 | Mass. | 1887
The only exception is to the ruling of the court that a right of way over the plaintiff’s land was not reserved as appurtenant to the defendant’s land by the deeds under which the plaintiff claims. The plaintiff derives her title from one Lappen, who, in 1872, conveyed the lot now owned by' her to one Kane, who subsequently -conveyed it to the plaintiff. Both deeds contained the words, “ There is a passageway on the southeasterly side of said premises, which is to be used in common with the abutters thereon.” The defendant’s land abuts on the southeasterly side of. the plaintiff’s land; and the contention for the defendant is, that a right of way in favor of the defendant’s land was reserved in the deed. At the time of the conveyance from Lappen to Kane, there was a passageway four feet wide, over which a right of way had been granted by Lappen as appurtenant to adjoining land which he had before that time conveyed. The deed refers to an existing passageway, and the natural construction of it is, that it excepts from the grant the existing right of way, and not that it creates a new right. The words, “ which is to be used in common with the abutters thereon,” do not necessarily include the defendant’s land. The passageway abutted upon the two lots in the rear which Lappen had sold, and the language may well be taken to refer only to those abutters on the way who had rights in it.
In Wickham v. Hawker, 7 M. & W. 63, a lease by indenture executed by three as lessors, two of whom had the legal title and the third the beneficial interest, contained a reservation of liberty to hawk, hunt, fish, and fowl upon the land. It was held that it could not operate as a reservation to the three, because one of them was not a conveying party, but, as the indenture was executed by the lessee, it might operate as a grant from him to the three.
The declarations of Lappen at the time of his deed to Kane are not competent to affect the deed.
.Exceptions overruled.
