Murphy v. Lee

• Citation: 11 N.E. 550,144 Mass. 371
• Parties: MURPHY v. LEE.
• Decision Date: 06 May 1887
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 371

11 N.E. 550

MURPHY v. LEE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 6, 1887

COUNSEL

C.P. Gorely, for defendant.

The plaintiff takes her estate coupled with a servitude or easement of a right of way "to be used in common with the abutters thereon." She holds her estate subject to said servitude, and in the same manner as it was held by her grantor. Hills v. Miller, 3 Paige, 254, 257; 3 Kent, Comm. 420. The plaintiff, by accepting the deed of her estate and taking possession under it, becomes bound by all the restrictions, limitations reservations, and exceptions contained in it. Bowen v Conner, 6 Cush. 136; Newell v. Hill, 2 Metc. 181; Goodwin v. Gilbert, 9 Mass. 510. Therefore the plaintiff is estopped from denying said servitude or easement. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 321. If the said easement of way over the estate of the plaintiff is appendant or appurtenant to the estate now held by the defendant, it has passed to her with said estate under the phrase, "with all the privileges and appurtenances thereto belonging," and would pass, even if no such express words were used. 3 Kent, Comm. 420; 2 Washb. Real Prop. (4th Ed.) 303; Kent v. Waite, 10 Pick. 138; Underwood v. Carney, 1 Cush. 285; Barnes v. Lloyd, 112 Mass. 232; Peck v. Conway, 119 Mass. 549. Easements, being interests in land, can be acquired ordinarily only by deed, or what is deemed to be equivalent thereto. A reservation or exception in a deed is deemed to be equivalent thereto; and an easement, such as a right of way, may be created by reservation. White v. Crawford, 10 Mass. 188; Pettee v. Hawes, 13 Pick. 323; Peck v. Conway, 119 Mass. 549; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 321. The intent must govern, if consistent with rules of law, and courts are bound to effectuate the intention of the parties. Bridge v. Wellington, 1 Mass. 227; Wallis v. Wallis, 4 Mass. 136; White v. Crawford, 10 Mass. 188; Frost v. Spaulding, 19 Pick. 446; Trafton v. Hawes, 102 Mass. 541; Bowen v. Conner, 6 Cush. 132, 136. Such an easement is never presumed to be personal when it can fairly be presumed to be appurtenant to some other estate, (Dennis v. Wilson, 107 Mass. 592; Washb. Easem. 28, 29, 161;) and this is determined by the fair interpretation of the grant or reservation creating the easement, aided, if necessary, by the situation of the property and the surrounding circumstances, (Peck v. Conway, 119 Mass. 549.) See Bowen v. Conner, 6 Cush. 132. An easement may be created in favor of one estate, and a servitude imposed upon another, without regard to any privity or connection of title or estate in the two parcels or their owners. 2 Washb. Real Prop. (4th Ed.) 303; Stockwell v. Couillard, 129 Mass. 233; Pettee v. Hawes, 13 Pick. 323.

Crowley & Maxwell, for plaintiff.

If the defendant had an easement of way over plaintiff's land, she acquired it by grant, or by prescription, which presumes a grant. The court found as a fact that no easement had been acquired by prescription. The defendant admits that there was no grant unless the words quoted from the deeds of Lappen to Kane, and Kane to the plaintiff, operated as a grant to the defendant's grantor. The words "in common with the abutters thereon" are entirely consistent with the fact that the plaintiff's land was conveyed subject to easements of way in favor of lots Nos. 2 and 3. The defendant and her grantors were entirely strangers to the above deeds. There never has been any privity of estate between the owners of lot 4, on the one hand, and lots 1, 2, and 3, on the other. If a person granting a part of his land to Richard Roe should misdescribe the remainder as land as John Doe, when in fact the part so misdescribed was land of the grantor, it would hardly be contended that such misdescription would operate as a grant to John Doe. Lappen's oral statement to Kennedy at the time of his (Lappen's) deed to Kane was admissible only as tending to show that Kennedy thereafter used the way under a claim of right; it was not admissible to affect the construction of the deed to Kane.

OPINION

W. ALLEN, J.

This is an action of trespass for breaking and entering plaintiff's close. The defendant set up a right of way over the locus. The only exception is to the ruling of the court that a right of way over the plaintiff's land was not reserved as appurtenant to the defendant's land by the deeds under which the plaintiff claims. The plaintiff derives her title from one Lappen, who in the year 1872 conveyed the lot now owned by her to one Kane, who subsequently conveyed it to the plaintiff. Both deeds contained the words: "There is a passage-way on the south-easterly side of the said premises, which is to be used in common with the abutters thereon." The defendant's land abuts on the south-easterly side of the plaintiff's land, and the contention of the defendant is that a right of way in favor of the defendant's land was reserved in the deed. At the time of the conveyance...