Tibbetts v. Penley

Virgin, J. This is an action on the case for obstructing a private way claimed by the plaintiff across the northwest corner of the defendant’s lot lying next south of the plaintiff’s. We do not think that the refusal to give the defendant’s requested instruction, relating to the alleged effect of the location off Knight street upon the private way in controversy, afforded him any cause for complaint. It was not based upon facts proved. The street was not located and built substantially [123] upon tlie location of the plaintiff’s passage way to his mill. To be sure, so far as the passage way extended along the western line of the " acre lot” (if at all) the street covered the same territory; but so much of if as extended east of that line to the plaintiff’s mill was entirely outside of and away from Knight street. Whether, if the street had extended over the whole distance of the passage-way, the latter, having been acquired by express grant, would have become extinguished is not certain ; though so much of it as was actually covered by the street might perhaps become merged therein and be revived whenever the street should be discontinued. Reg. v. Chorley, 12 Q. B. 515; Leonard v. Adams, 119 Mass. 366, 368; Godd. Ease. 75, 76, 445. Undoubtedly in straightening public ways by alterations authorized by 3L S., c. 18, such strips of land in an old location as are not covered by the new, would become ipso facto discontinued. Buch is the natural and desired object sought by the proceeding. Cyr v. Dufour, 68 Maine, 492, 499. So under statutory provisions "towns may discontinue private ways.” R. S., c. 18, § 17. But the private ways therein referred to are such only as the municipal officers are authorized, after due preliminary proceedings, to "lay out, alter or widen” by R. S., c. 18, § 14, and not those which are created by express grant. If the plaintiff’s passage-way were one of necessity simply, the location of the street along the western line of the plaintiff’s land, would operate a discontinuance of it across the defendant’s land, on the well-settled doctrine that the necessity from which the way resulted having ceased, the right of way ceased. Whitehouse v. Cummings, ante p. 91. The mere fact that, the street was laid out and built at the instigation of the plaintiff who would be benefited by it, would not of itself be conclusive evidence of his abandonment of his passage-way. Whether or not there was an abandonment on his part depended largely upon his intention which must be shown by evidence of such facts as clearly indicate it. Jamaica P. &. A. Corp. v. Chandler 121 Mass. 3; King v. Murphy, [124] 140 Mass. 254. In the case at bar the street was not laid ont between termini of the passage. Moreover no question of abandonment was raised at nisi prius. First exception. Knight’s deed, of April 20, 1866, to the plaintiff conveyed not only the land therein described, but "also, the right of passage-way for himself and others, with or without teams, from the county road to the aforegranted premises in the most direct and convenient place.” Knight’s deed, of September 21, 1885, to the defendant of the land adjoining on the south that conveyed to the plaintiff above-mentioned, contained the clause : " Said premises are subject to a right of way granted by said Knight to said John E. Tibbetts, by the aforesaid deed of April 20, 1866.” This language contains no intimation that, the way thus defined in general terms had been located in fact by Knight and the plaintiff; and independent of the facts elicited at the trial, it could have no special significance upon that question. But one of the principal issues submitted to the jury by the parties was — whether the passage-way, mentioned in Knight’s deed to the plaintiff', was ever located by the parties thereto across the northwest corner of the land convoyed by Knight to the defendant. The plaintiff claimed that it was thus and there located immediately after the receipt of his deed. On the other hand, the defendant contended that the way was over the land directly west of the plaintiff’s,— then owned by Knight and now covered by Knight street,— and that it did not touch the land retained by Knight and subsequently convoyed to the defendant in September, 1885. In addition to various items of evidence bearing upon that issue, the presiding justice called the attention of the jury to the clause above quoted in Knight’s deed to the defendant, and among other instructions, gave the one to which exception was taken. We think the defendant has no cause for complaint. The grantee in a valid and operative deed poll under which he desires and enjoys a title by its acceptance, becomes bound by the restrictions, limitations, reservations and exceptions contained in it; and it does not lie in his mouth to impeach it or [125] reject the burden it imposes. Winthrop v. Fairbanks, 41 Maine, 307; White v. Bradley, 66 Maine, 254, 256. While the language itself had no particular significance in establishing the alleged fact of location of the private way, nevertheless when taken in connection with the other facts relating to the issues — that the way did not touch the defendant’s land, Ms deed contained an admission that he was in error. And as the way over the northwest corner of Ms land, was the only one which had ever existed from the plaintiff’s mill, the jury might well be told that, the clause in the deed was important evidence on the question. The second and fourth exceptions were not pressed at the argument. Exceptions overruled. Peters, C. J., Walton, Libbey, Haskell and Whitetiouse, JJ., concurred.