Pope v. Devereux

Thomas, J This is an action of tort for the obstruction of [412] an alleged foot way over the defendant’s land to land of the plaintiff. The answer denies the existence of any right of way in the plaintiff over land of the defendant. The plaintiff claims the right of way by prescription. It was admitted that prior to 1812 there was a right of way substantially as claimed by the plaintiff. The defendant offered evidence, to wit, declarations of the plaintiff,that, about that year, the old way was, by the agreement of the then owners and the respective grantors of the plaintiff and the defendant, discontinued; the defendant’s grantor, in consideration of the relinquishment by the plaintiff’s grantor of the old way, agreeing to open another way over a different field. This evidence was objected to, but admitted. Rightly, we think, upon the authority of Larned v. Larned, 11 Met. 421. The plaintiff says, an unexecuted parol agreement to give up the easement is not valid. That is good law. Dyer v. Sanford, 9 Met. 395. But this was not an unexecuted agreement. On the other hand, the instructions put the case upon a surrender of the old way, made in pursuance of the agreement for the new. It is not the duration of the cesser to use the easement, but the nature of the act done by the owner of the easement, or of the adverse act acquiesced in by him, and the intention which the one or the other indicates, that is material. The Queen v. Chorley, 12 Ad. & El. N. R. 515. And a cesser of use for a less period than twenty years, accompanied by acts clearly indicating the intent to abandon the right, is sufficient. Moore v. Rawson, 3 B. & C. 332. Liggins v. Inge, 7 Bing. 682. Dyer v. Sanford, 9 Met. 395. The defendant also offered the admissions of Amos Cross, the plaintiff’s cestui que trust, that he had heard of the agreement for the alteration of the way. These admissions were objected to, but admitted. We think this evidence should have been excluded. The fee of the land, to which the right of way was claimed to be appurtenant, was in Ruth, the wife of Cross. Cross and his wife joined in a deed conveying this land, and a small lot owned by [413] Cross in his own right, to the plaintiff, in trust, to permit Amos and his wife to enjoy said estates during their lives, and, at the death of either of them, to convey the whole to the survivor, free from the trust, and in fee simple; but, if necessary for the support of Ruth, the plaintiff was empowered to sell the land, or such part of it as might be required for that purpose. Amos Cross then was not the sole person interested in the estate, nor the person most largely interested. In May v. Taylor, 6 Man. & Gr. 261, where the court excluded the admissions of the cestui que trust, there is an intimation that if she had been the sole person interested, her written license to the lessee to “ displant ” a part of the hop lands, which the lessee had covenanted to manage in a good and husbandlike manner, might be competent evidence for the lessee in an action by the trustee for breach of the covenant. But even this is, at the best, doubtful. It might have been the very object and purpose of creating the trust, to prevent the cestuis que trust from conveying or wasting the estate. If they cannot impair the legal title by their grant, there is no sound reason why they should by admissions in pais. There is less reason why the admissions of one should affect the interest of the other cestui que trust. The other evidence to which exception was taken was rightly admitted, for the reasons and under the limitations well stated by the presiding judge. Exceptions sustained.