| N.H. | Jun 5, 1890
May 30, 1854, Charles Bellows conveyed the Melcher lot to Wilson Baldwin, "with all the privileges reserved in the deed of John Eames to the Atlantic St. Lawrence Railroad, restricting them in building and keeping any public house or eating saloon on the premises conveyed to them by John Eames." Whether this clause in the deed created an easement or servitude in the railroad lot in favor of the Melcher lot is wholly immaterial. There is no question in this case what the rights of the plaintiffs are in the railroad lot. Wilson Baldwin took no easement, right, or privilege in the Eagle lot by virtue of their deed from Bellows.
The proviso in the deed of Bellows and Eames to Danforth and Richey, dated September 2, 1854, of the Eagle lot, "that no tavern or public house be built upon the same," did not create an easement in favor of the Melcher lot, for Bellows and Eames did not then own it. The fact that Bellows then held a mortgage of the Melcher lot for the security of a portion of the purchase-money did not give him such an estate in it as that, when he conveyed his undivided half of the Eagle lot with the restriction named, an easement was thereby created in favor of the Melcher lot. He had the legal estate in that lot for the purpose merely of protection of his interests, and when the debt was paid the mortgage was at once thereby discharged.
What remedy Bellows and Eames, or their legal representatives, have for the violation of the restriction in their deed is a question that need not be settled in this suit.
The evidence offered by the plaintiffs of the parol agreements of Bellows and Eames when they conveyed the Melcher lot to Wilson Baldwin, that no hotel should ever be built on the Eagle lot, was not competent to show an easement in the latter lot in favor of the former. The agreements were by parol, and an *362 easement cannot be created except by deed, or by prescription which presupposes a grant.
Certain evidence has been reported tending to show that the defendant had actual notice of the restriction in the deed of Bellows and Eames to Danforth and Richey. There is no question in the case upon which the evidence was competent.
Exceptions overruled.
CARPENTER, J., did not sit: the others concurred.