White v. New York & N.E.R. Co.

• Decision Date: 31 March 1892
• Citation: 156 Mass. 181,30 N.E. 612
• Parties: WHITE et al. v. NEW YORK & N.E.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 181

30 N.E. 612

WHITE et al. v. NEW YORK & N.E.R. CO.

Supreme Judicial Court of Massachusetts, Norfolk.

March 31, 1892

In 1848 the Norfolk County Railroad Company defendant's grantor, located its road across certain land belonging to Emmons Partridge. The road, as thus located divided the land into tracts containing about 4 and 33 acres respectively. The former adjoined a highway, but the only lawful means of access to the latter was by a passway over the smaller tract and the railroad.On January 3, 1850, Emmons Partridge, in consideration of $450, conveyed to the Norfolk County Railroad Company the strip already appropriated by it together with the right to use the land for a railroad, "hereby releasing all claim for damages for making, maintaining, and using said railroad, reserving the passway at grade over said railroad where now made." This passway had been used before the location of the road, and, without objection from the companies, was used by Partridge and his grantees until 1889, when defendant took up the planks of the crossing, and built fences across the way. In 1865 Partridge conveyed the land on both sides of the railroad to Lyman D. Ware, who in 1879 entered into an indenture with defendant, for the purpose of defining the boundary lines of the defendant's strip of land, in which it was stipulated that "nothing herein contained, however, is to be construed *** to cut off or obstruct the existing passway at grade enjoyed by said Ware, being the same reserved in the deed made by Emmons Partridge to the Norfolk County Railroad Company, dated January 3, 1850." On August 2, 1881, Lyman D. Ware conveyed to the New York & New England Railroad Company, to form a part of the strip of land aforesaid, a narrow strip of land lying along the southerly side of the railroad, and being part of the smaller lot now owned by the plaintiff, lying south of the railroad, by a deed which contained, at the end of the description, and just before the habendum, the following words: "Nothing in this deed is to be construed as cutting off any grade crossings, culvert, or water-course that I now have across or under said railroad." On November 9, 1885, Lyman D. Ware conveyed the two lots above described, with all the privileges and appurtenances thereto belonging, to plaintiff Isabella White, by warranty deed.

COUNSEL

D.E. Ware and Jas. Hewins, for plaintiffs.

R.D. Weston Smith, for defendant.

OPINION

MORTON, J.

In view of the facts in this case, we think that the deed from Partridge to the Norfolk County Railroad Company operated to except the passage-way for the benefit of and as appurtenant to the larger tract, and that it passed with that to the plaintiff. The defendant does not claim that any importance is to be attached to the fact that the word "reserving" was used instead of "excepting." It insists, more broadly, that, by the terms of the reservation, the passage-way was limited to Partridge for his life; or, if that is not so, that the railroad company, having by its location acquired the absolute right to use the tracts for a railroad, all that remained in Partridge was the fee, out of which no way could be excepted; and that Partridge could create a perpetual easement only by a reservation in the nature of an implied grant, in which case the word "heirs" was necessary, and its omission was fatal. We think it is evident, from the situation of the land and the surrounding circumstances and those attending the giving of the deed that it was the intention of the parties that the passage-way should be annexed as a perpetual right to the larger tract. It was clear that the larger tract would be wholly inaccessible, unless Partridge and his...