Stevens v. Orr

69 Me. 323 | Me. | 1879

Walton, J.

The court is of the opinion that it must be regarded as the settled law of this state that the conveyance of a specified parcel of real estate, described by metes and bounds, will not carry with it a right of way over the grantor’s adjoining land (although such way may be highly convenient, and apparent upon the face of the earth and in actual use at the time of the conveyance, and the deed contains the words “ with all the privileges and appurtenances ”), unless such way is clearly necessary to the beneficial use and enjoyment of the estate conveyed. So held in Warren v. Blake, 54 Maine, 276. And the same rule was applied to a drain in Dolliff v. Boston & Maine R. R., 68 Maine, 173.

We are aware of the conflicting state of the authorities upon this question. We have had occasion to examine them very fully on several occasions within the last few years. The leading cases are cited and commented upon in the case first above cited (Warren v. Blake), and it cannot be profitable to go over them again. They are also quite fully cited in the briefs of the learned counsel in this case.

The justice of the superior court (by whom this case was tried without a jury) found as matter of fact that the grantee “had no other right of way to the cove, and no other means of access to it without crossing the lands of other persons.” From this we infer that he was of the opinion that the way was highly convenient to the grantee. He also found that, at the time of the conveyance, the way in question “ was apparent upon the face of the earth as a path leading to the cove, and accustomed to be used by the grantee.” But he did not find (or if he did, the exceptions fail to so state) that the way was necessary to the beneficial use and enjoyment of the estate conveyed. His conclusion, therefore, that the way in question passed as one of the privileges and appurtenances of the estate, is apparently unwarranted and erroneous.

Exceptions sustained,.

Eew trial granted.

Akpleton, O. J., Barrows, Yirgin and Libbey, JJ., concurred.