This is а bill in equity to require the defendant McGlory to remove two electric wire poles erected on the land of the plаintiff and to enjoin the defendant Massachusetts Electric Company from transmitting electricity across the land. The plaintiff also seeks damages.
Following a trial in the Superior Court the judge entered a decree adjudging that an easement granted in а deed executed in 1948 from the plaintiff’s predecessors in title to the defendant McGlory conveyed by implication the right tо erect poles and maintain electric wires on the roadway referred to in the terms of the easement and to trаnsmit electric current by wires appropriate to the use and enjoyment of the conveyed premises. The bill was dismissed as to both defendants. The plaintiff appeals.
The case is before us on a transcript of the oral evidence, а report of material facts and documentary evidence. In these circumstances, we may find facts not expressly fоund by the judge but his express findings which are based in part on oral evidence will not be overturned unless plainly wrong.
Selig
v.
Wexler,
We summarize the facts found by the- judge, augmented
The plaintiff’s and McGlory’s lands were formerly part of a single tract owned by James and Mary Ward, now deceased. In 1948, the Wards conveyed twenty-five acres of this tract to McGlory. The plаintiff is the Wards’ successor in title to the remaining land. McGlory’s land is bounded by the plaintiff’s land on three sides and by other privately owned land on the fourth side. It is inaccessible to a public road except for a right of way created by the 1948 deed over the plaintiff’s land. The deed recited that the conveyance was made “together with a right of way over other land of the grantors on the existing roadway east of the barn.” The roadway is a single lane dirt road which has not changed in location or condition since 1948.
In 1955, McGlory erected two poles supporting electric wires approximately ten feet from the roadway on the land of the plaintiff. The plaintiff has actively opposed the installation since 1955 but took no court action prior to the filing of the present bill. McGlory has been in the pig-raising business since 1948. He claims that electricity is necessary for its оperation. Until 1955, however, he did not operate the farm in the winter and did not need electricity.
The decree cannot stand. The extent to which an express easement includes unspecified uses is determined “by the language of the grant construеd in the light of the attending circumstances which have a legitimate tendency to show the intention of the parties as to the extent and character of the contemplated use of the way.”
Doody
v.
Spurr, 315
Mass. 129, 133. The easement granted by the Wards contains spеcific language limiting the right of way “on the existing roadway.” The roadway has not changed since the creation of the easement. The defendant McGlory’s rights in the easement were limited to the surface of the roadway as it has existed since 1948.
Dunham
v.
Dodge,
Nor can the 1948 grant be construed to include an implied easement of necessity. An implied easement is “founded on the idea that it is the purpose of the parties that the conveyance shall be beneficial to thе grantee.’’
Orpin
v.
Morrison,
Evеn if the poles had been erected on dhe roadway, it would have been an interference with the plaintiff’s rights as owner of the land. See the
Crullen
case,
supra.
It follows that the erection of the poles off the roadway is a new and additional burden on the plaintiff’s land and is a trespass which can be enjoined. The case of
Cummings
v.
Franco,
The Massachusetts Electric Company is also respоnsible for a continuous trespass. It did not have permission to transmit electric current across the plaintiff’s land. Although it did not install the wires or the poles, the act of connecting the wires to their source of power and continuously transmitting electriсity was an affirmative voluntary intrusion onto the plaintiff’s property.
Phelps
v.
Berkshire St. Ry.
The use of the elеctric current together with the presence of the poles and wires prevented the plaintiff from exercising his proрerty rights with respect to that part of his land. He is entitled to the reasonable value of the use made by the defendants for еach of the years that the plaintiff’s land was so used, in addition to damages, if any, resulting from the defendants’ impairment of the plаintiff’s right to use the land. See
Ottavia
v.
Savarese,
The decree is reversed. The case is remanded to the Superior Court “for assessment of damages and the entry of a new decree granting to the plaintiff the injunctive relief sought and awarding any damages which may be assessed.
So ordered.