153 Mass. 120 | Mass. | 1891
The petitioners are the heirs at law of Edmund I. Richards, who, up to the time of his death in 1882, owned the parcel of land in question, which was taken by the respondent in
In assessing the damages for the taking, the petitioners contended that, notwithstanding the deed of Edmund I. Richards to the respondent, he and they as his heirs had a right of way by necessity over the depot lot. It is argued that, if Edmund I. had owned the depot lot, and had conveyed it to the respondent, a right of way to the road would have been reserved to him by implication as a way of necessity, because he had no other way out to a public'road; and therefore it is said that, for the same reasons, as he owned only a defined right of way, and has conveyed that, a right of way of necessity was still reserved to him by implication out of this defined way, because he had no other way out. On the one side, it is argued that the foundation of the rule whereby a right of way of necessity is held to have been impliedly granted or reserved in deeds is, that it is against public policy that the
There is no doubt that a right of way can be released to the owner of the servient estate by the owner of the dominant estate, and that the deed releasing the right of way in this case cannot be treated as void. A way of necessity can be presumed to have been granted or reserved only when the necessity existed at the time of the grant, and this right of way is presumed either to have been granted out of other land of the grantor, or reserved to the grantor out of the land granted; never out of the land of a stranger. The law does not give a right of way over the land of other persons to every owner of land who otherwise would have no means of access to it. Pomfret v. Ricroft, 1 Wms. Saund. 323, note 6. Nichols v. Luce, 24 Pick. 102. Bullard v. Harrison, 4 M. & S. 387. Proctor v. Hodgson, 10 Exch. 824. Tracy v. Atherton, 35 Vt. 52. Seeley v. Bishop, 19 Conn. 128.
In the present case, a way of necessity could not be reserved over other land than that included between the boundaries of the way released by the deed of Richards to the respondent, and to imply a reservation of the right of a reasonable way out of the right of way released by that deed seems absolutely inconsistent with the intention of the parties, as expressed in that deed. As the law does not give to every owner of land a right of way to it, or prohibit an owner from cutting himself off from all access to it by his conveyances, we think that the reservation of a way of necessity cannot be implied in this case. The ruling at the trial, therefore, was right.
Our statutes make provision for the laying out of a private way for the use of one or more persons, if it is considered necessary. Pub. Sts. c. 49, §§ 65, 72.
Judgment on the verdict.