Childs v. Boston & M.R.r.

Decision Date25 November 1912
Citation99 N.E. 957,213 Mass. 91
PartiesCHILDS et al. v. BOSTON & M. R. R.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Wm A. Davenport, of Greenfield, for plaintiffs.

Dana Malone and Chas. N. Stoddard, both of Greenfield, for defendant.



This is an action of tort for the obstruction of an alleged right of way over a location occupied by the defendant. In 1846 David W. Childs, owning a farm through which the Connecticut River Railroad had been located recently, conveyed to that corporation land partly included within its location by a deed containing this language: 'And it is understood and agreed that the said company are * * * to make me a good and sufficient crossing for carting across said railroad near my bar place or such other place as we can agree upon.' There is nothing in the record to show that there was any crossing in existence at this time, and whatever inference may be drawn from the language of the deed tends to show that there was none. But one was made soon after, and used continuously until it was closed in 1907 by the defendant who has succeeded to the rights of the Connecticut River Railroad Company. In 1876 David W. Childs conveyed his farm to one Stebbins, who later deeded a portion to the predecessors in title of the plaintiffs.

The plaintiffs have argued that they have the way in question by necessity. But the facts do not support this contention. Their land is accessible by highway, and though this means of approach is less convenient than the one here claimed, it does not apppear to be such as to deprive them of reasonable use of their land. It follows that there is no way by necessity. Feoffees in Ipswich v. Proprietors, 174 Mass. 572, 55 N.E. 462.

There is no evidence requiring a finding that there is a right of way by prescription. The deed of David W. Childs to the Connecticut River Railroad Company gave him, at least, a right to use the way during his occupation of the farm as owner, and hence no adverse use began before 1876. Therefore there was not the requisite period of use to establish a prescriptive right before the passage of St. 1892, c. 275 (now St. 1906, c. 463, pt. 2, § 125), which prohibited the acquisition of such rights of way by prescription.

The important question is the construction of the clause in the Childs deed to the railroad which has been quoted. An easement of a right of way can be created only by grant, express or implied, or by prescription which rests on the fiction of a lost grant. Drew v. Wiswall, 183 Mass. 554, 67 N.E. 666, or by exception in a conveyance which carves out the easement from a larger estate and, retaining that in the grantor by virtue of his original ownership, passes to the grantee an estate thus incumbered. Wood v. Boyd, 145 Mass. 176, 13 N.E. 476. The clause in the present deed can not operate by way of exception because it created a new right of way not before used or existing, the burden of fashioning which was placed upon the railroad company. White v. N.Y. & N.E. R. R., 156 Mass. 181, 30 N.E. 612; Hamlin v. N.Y. & N.E. R. R., 160 Mass. 459, 36 N.E. 200; Simpson v. Boston & Maine R. R., 176 Mass. 359, 57 N.E. 674; Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463, 470, 70 N.E. 937; Foster v. Smith, 211 Mass. 497, 503, 98 N.E. 693. The language cannot be construed as a reservation of an easement in fee, and thus as an implied grant, because of the omission of the word 'heirs,' which is essential to the creation of any estate greater than a life estate. Ashcroft v. Eastern R. R. Co., 126 Mass. 196, 30 Am. Rep. 672; Bean v. French, 140 Mass. 229, 3 N.E. 206; Hogan v. Barry, 143 Mass. 538, 10 N.E. 253.

A technical easement in fee is not shown. The clause is in form an agreement. It is in a deed poll and not in the form of a technical covenant sealed by the grantee. Hence under the decisions it is not a covenant running with the land, and no action of contract lies between the owners of the estates subsequent to the original contracting parties. Maine v. Cumston, 98 Mass. 317; Martin v. Drinan, 128 Mass. 515; Kennedy v. Owen, 136 Mass. 199. The position of the stipulation in the instrument at the end of the description and its substance both indicate that the performance of it by the Connecticut River Railroad Company was a substantial part of the consideration for the conveyance. The grantor was the owner of a farm, which had been divided by the location of the railroad. Access from one part to another of his farm which theretofore had been free was seriously interfered with by the railroad location. Unless provision was made for the crossing, the value of his land would be seriously affected. The property was so situated and of such a character that it was likely to continue for a long time to be valuable chiefly for agriculture. It is hard to believe that the farmer would have made a conveyance to a railroad company of the fee of land, a part of which apparently lay outside the railroad location, without securing or intending to secure to himself a right of way which would join his dismembered farm. These were the circumstances of the parties when they made the written agreement.

Interpreting the language in the light of their situation at the time they used it (as ought to...

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