Parsons v. New York, N.H. & H.R. Co.
| Decision Date | 23 December 1913 |
| Parties | PARSONS v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Nathaniel N. Jones, of Boston, and Winfield Temple, of Marlboro, for plaintiff.
John L Hall and Jos. Wentworth, both of Boston, S. C. Rand and F. S Wyner, of Dorchester, for defendant.
This is an action for the obstruction of an alleged right of way across tracks of the defendant. In 1857 the Agricultural Branch Railroad Company, a predecessor in title of the defendant, deeded to George E. Woods and Winslow M. Warren two parcels of land adjacent to its location. The first parcel described in the deed contained about four acres, and at the conclusion of its description by metes and bounds was this language: 'the said Woods & Warren are to have the right to pass from the easterly end of said premises over the land of said company to the county road.' Following the description of both parcels was the habendum clause in the usual form 'to the said Woods and Warren, their heirs and assigns.'
1. The first contention of the defendant is that this deed created only an easement during the lives of the grantees. This contention cannot be supported. There is nothing to indicate that Woods & Warren had any other occasion to use the right of way than as a means of passing to and from the four-acre lot. The inference seems to be inevitable that it was intended to be appurtenant to the estate granted. The habendum with the words 'heirs and assigns' which follows the description both of the easement and of the land fixes the character of title conveyed to each as being coextensive. The deed conveyed a right of way in fee appurtenant to the land. Pratt v. Sanger, 4 Gray, 84; Dennis v. Wilson, 107 Mass. 591, 592; Hogan v. Barry, 143 Mass. 538, 10 N.E. 253.
2. The easement does not arise by necessity, but by express grant. Its duration is not limited by the deed to the bald necessities of the owner of the estate, but is unbounded as to time. Hence, the circumstance that the owner of the lot has acquired another way out does not warrant the inference of extinguishment of the earlier way created by express grant. Atlanta Mills v. Mason, 120 Mass. 244, 251. As there is nothing in the terms of the deed to restrict the right of way to the necessities of the owner of the land, Viall v. Carpenter, 14 Gray, 126, plainly is distinguishable.
3. The deed from Woods & Warren to their first successor in title, executed in 1864, contained no express reference to this way. It is familiar law that easements or other interests in land necessary for its natural uses pass under the general clause granting privileges and appurtenances. That rule applies to the case at bar. There was testimony that as far back as 1872 the way was located, and that at that time there was a bar way in the fence separating the lot from the land of the railroad, and that there were planks on each side of the rails, indicating a condition of some permanence and of considerable antecedent existence. The original grantees appear to have died before the trial. In the nature of things precise evidence as to facts existing in 1864 was difficult to obtain. The land, according to the earliest testimony touching its character, was cultivated, and hence may be presumed to have required frequent passage to it by its owners or occupants.
It is obvious from the plan and other evidence that in 1857, and until after 1864, the only access to the tract was over this way. But for this right of way described in the grant, there would have been no path to reach the land unless one by necessity had been implied. Such an implication does not arise in the face of an express grant. Moreover, by the terms of the grant the easement became parcel of the premises and hence passed as appurtenant by subsequent conveyance. Grant v. Chase, 17 Mass. 443, 447, 9 Am. Dec. 161; Peck v. Conway, 119 Mass. 546. The way was essential to the use and enjoyment of the granted premises. It was said by Chief Justice Shaw in Tourtellot v. Phelps, 4 Gray, 378, that 'the grant of the principal thing carries all things necessary to the use and enjoyment of the thing granted, which the grantor had the power to convey.' The inference under all the circumstances is irresistible that the way actually belonged to the estate and, being appurtenant, passed by implication under the deed of 1864. The necessary connection between the land and the way was too close to warrant the idea of a severance. There is nothing inconsistent with this result in Philbrick v. Ewing, 97 Mass. 133; Parker v. Bennett, 11 Allen, 388; Bass v. Edwards, 126 Mass. 445, 449; Haverhill Savings Bank v. Griffin, 184 Mass. 419, 421, 68 N.E. 839, and Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 412, 97 N.E. 54, 38 L. R. A. (N. S.) 882.
4. There was no evidence of abandonment of the easement. An easement created by deed is not defeated by mere nonuser. There must be in addition other acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a...
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