Hogan v. Barry

• Decision Date: 23 February 1887
• Citation: 10 N.E. 253,143 Mass. 538
• Parties: HOGAN v. BARRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 538

10 N.E. 253

HOGAN v. BARRY.

Supreme Judicial Court of Massachusetts, Essex.

February 23, 1887

COUNSEL

W.S. Knox, for plaintiff.

The grantors in the plaintiff's deed, being the owners of the entire parcel of land out of which the estates of the plaintiff and defendant were created, had the right to impose upon one portion an easement in favor of the other. The fair interpretation of the agreement of the parties is that they intended to create this servitude. In no other view would the agreement be useful and beneficial to the plaintiff. Peck v. Conway, 119 Mass. 546; Stearns v. Mullen, 4 Gray, 151; Dennis v. Wilson, 107 Mass. 591; Bronson v. Coffin, 108 Mass. 175. The only question is, was there any evidence to be submitted to the jury in support of the plaintiff's declaration? Forsyth v Hooper, 11 Allen, 419; Heywood v. Stiles, 124 Mass. 275.

J.P Sweeney, for defendant.

The agreement in the deed from De Courcey to the plaintiff was a mere personal stipulation or agreement, and not a covenant running with the land, or binding upon the defendant. Badger v. Boardman, 16 Gray, 559; Jewell v Lee, 14 Allen, 145; Skinner v. Shepard, 130 Mass. 180. The breach for which the plaintiff sues having occurred before the conveyance from De Courcey to the defendant, no action lies against the latter thereon. Shelton v. Codman, 3 Cush. 318.

OPINION

HOLMES, J.

This is an action of tort for interfering with an easement which the plaintiff claims by virtue of the following words inserted after the description, and before the habendum, in the conveyance to him: "And said grantors agree that no building shall be erected on said lot next east of said granted premises nearer to the west line of said lot than four feet, being the east line of the premises hereby conveyed." The grantor owned the adjoining land referred to, and subsequently conveyed it to the defendant.

There is no doubt that an easement may be created by words sounding in covenant. Bronson v. Coffin, 108 Mass. 175, 180. If the seeming covenant is for a present enjoyment, of a nature recognized by the law as capable of being conveyed and made an easement,--capable, that is to say, of being treated as a jus in rem, and as not merely the subject of a personal undertaking,--and if the deed discloses that the covenant is for the benefit of adjoining land conveyed at the same time, the covenant must be construed as a grant, and, in the language of Plowden, 308, "the phrase of speech amounts to the effect to vest a present property in you." An easement will be created and attached to the land conveyed, and will pass with it to assigns, whether mentioned in the grant or not. Norcross v. James, 140 Mass. 188, 2 N.E. 946. Of course, when a man grants such an interest out of a fee then wholly in him, it is unnecessary for him to mention his own assigns, or even his heirs, in order to burden the land in their hands, nor is it usual to mention them in the common form of deed.

In the case at bar the seeming covenant was not that the grantors would not erect a building, but that no building should be erected within four feet of the line. The right conferred upon the grantees was therefore of a kind recognized by the law as capable of being made an easement within reasonable limits. Brooks v. Reynolds, 106 Mass. 31. We think, too, that the right must be taken to have been conferred for the benefit of the land conveyed. It is true that express words to that effect are wanting, but it stands to reason that there can have been no other purpose. Peck v. Conway, 119 Mass. 546; Dennis v. Wilson, 107 Mass. 591. We are therefore of opinion that the word "agree" must be read as meaning "grant," and that it attached an easement to the plaintiff's land.

The fact that the plaintiff's grantor did not mention the incumbrance in her subsequent deed to the defendant is immaterial. The successive owners of the servient...