Rowell v. Doggett
10 N.E. 182
Mass.
1887
Check Treatment
Gardner, J.

The contention between the parties is whether the easement granted to Patterson is limited to a footway, or whether it is for horses and carriages as well as for foot- passengers.

A grant of way over one’s own premises, without limitation or restriction, is understood to be a general way for all purposes. But, in construing such a grant, reference is to be had to the nature and condition of the subject matter of the grant at the time ■ of its execution, and the obvious purposes which the parties had in view in making it. Washburn on Easements, (4th ed.) 254. Where the words of a deed are ambiguous, and not explainable by the context, the construction given to the words themselves, as shown by the way and manner in which the parties exercised their respective rights, is legal evidence. If a passageway granted by deed has been used in a certain mode from the time of making the deed to the time of an alleged trespass, without any objection being made, this evidence is admissible to show what was intended by the grant. Choate v. Burnham, 7 Pick. 274.

In the case at bar, if there was any restriction in the grant upon the use of the way, which rendered it doubtful as to the manner in which it was to be used, then evidence of the character above referred to was, at least, admissible.

*488Although Patterson by the deed had a right to a passage eighteen feet wide, yet in making use of the passage he was not to injure or destroy any fruit trees then in a bearing state. He was to use it in a reasonable way consistent with the nature and condition of the premises over which he had the right of passage. What is a reasonable use of a way, where the purposes are not defined in the grant, is a question of fact, to be determined upon evidence. Washburn on Easements, 282. The grant in the case at bar cannot be construed by the language of the deed. Resort must be had to extrinsic evidence to determine it. If it should appear that the way was closely planted with fruit-bearing trees, so that it would be impossible for horses and carriages to pass through the way without injuring and destroying the trees, it would, at least, be evidence tending strongly to show that the parties never intended that the way should be so used.

The declarations of a deceased former owner of land, made during his ownership, and tending to prove the existence of a right of way over it, are competent evidence against the present owner. Blake v. Everett, 1 Allen, 248. These are admitted upon the ground that they are against the owner’s interests and in disparagement of his title. So far as the declarations in the case at bar went to the effect to disparage Patterson’s title to the easement which he was then using, and to limit its use to a footway, being against his own interests, we think they were admissible. They were made while he was using the passage as a footway. Pickering v. Reynolds, 119 Mass. 111. At the time of the trial Patterson was dead. At the time of the execution of the deed to Patterson, there was a footpath from the land now owned by the defendant to High Street, and this footpath had been in existence since 1849 or 1850. In 1857, three years after the execution of the grant to Patterson, he built a fence, along the entire line, between his lot and that of his grantor Lewis, extending it over the eighteen-foot passageway and leaving a gate about four feet in width at the southerly end, in order to accommodate the footpath. The fence, with the gate, was maintained substantially in the same position continuously for a period of twenty-five years, or until 1883, when the acts of the defendant complained of were committed. The footpath as it existed in 1849 or 1850, in 1853 at the time of the grant, and *489as subsequently used until 1888, entered tbe eighteen-foot strip at its southerly side, and then turned towards the northerly side, winding around and between the growing trees. The eighteen-foot passage at the time of the grant was rough and ledgy, and it would have been impossible to construct a practicable way for vehicles without a considerable cut or fill, or both, at one point at least. At the time of the grant five apple trees stood on the passageway, some of which were in a bearing condition. They stood in such a position that it w;ould have been impossible to pass through with a vehicle without cutting away their branches. Before one of the trees was cut down, in 1873 or 1874, the branches intertwined with those of a neighboring tree across the passageway, so that it was difficult for a person to pass between in the footpath with an umbrella open, and it would have been impossible to pass through with any vehicle without cutting away the branches of the trees.

We think, from the nature and condition of the passageway at the time of the grant, that it was then a footway winding through the eighteen-foot strip, from one side to the other, in order to avoid the bearing trees, and that it had been used for several years before, as it was at the time of the grant, that it was then and had been impassable for vehicles, and that the obvious purpose which the parties had in view in making it was as a way for foot passengers, and not for horses and carriages. We are confirmed in this opinion by the subsequent acts of the parties during nearly twenty-five' years.

The defendant argues, that, as the land of Patterson at the time of the grant had no connection with any public way except over the grantor’s land, a way of necessity for all suitable purposes would have been implied in the absence of any express terms. But the grant that carries with it a right of way of necessity does not necessarily imply a carriage-way, even though the thing granted be a house. Washburn on Easements, 272. In 1857, four years after the deed to Patterson, he acquired the right to pass out to Walnut Street, a public street lying east of the lots in question. At that time the right of way by necessity ceased: A way of necessity ceases as soon as the necessity ceases. Viall v. Carpenter, 14 Gray, 126. Abbott v. Stewartstown, 47 N. H. 228.

Decree affirmed.