Barnes v. Lloyd

Endicott, J. Both parties derive title to their respective lots from Henry W. Dwight, who in 1800 owned both. In that year he conveyed the lot now owned by the defendant to Abram Williams, together with the way in controversy, which he describes as a “ right to pass and repass from the road .... to the land above described, upon the piece of land which I have agreed to convey to (Nehemiah) Ide, reserving a right to pass as aforesaid.” The land which he had agreed to convey to Ide is the land now owned by the plaintiff. It is admitted that Dwight conveyed this land to Ide, though the deed cannot now be found. And it is to be presumed that in reserving the right of way over it he used in substance the same words used by Ide and his grantees, in the subsequent conveyances. In 1801, Ide conveyed it to Dickinson, “ excepting and reserving a right to a bridle path or footway, on the north side of said strip, of four rods wide from the highway to land of Abram Williams.” Between 1801 and 1859, this land was conveyed by deed seven times, and in every deed there is the like reservation in substantially the same words. In 1859, it was conveyed by Amos Dresser to the plaintiff, “ excepting and reserving a right of way, on the north side of said land, to the heirs of the late William Williams, 2d.” Abram Williams had in 1832 conveyed his lot to William Williams, '2d, by a deed which contained no reference to any way or easement. William Williams, 2d, died in 1854, intestate, and the premises were set off to his three daughters without any reference to the right'of way. These daughters, in 1867 and 1869, conveyed the premises to the defendant by their separate deeds, and each ot the deeds, in substantially the same language, also grants the right of way, “ forever reserved to heirs of William Williams [231] 2d, by deed of Amos Dresser to James Barnes, dated April 1, 1859.” It does not appear that at any time during this whole period from 1800 to the time of the alleged trespass by the defendant had the way been open and actually used by the Williamses or those claiming under them. The plaintiff claimed that the way had been extinguished by prescription ; but the jury under instructions, not objected to, found that the way had not been extinguished by adverse user or prescription. A right of way established by grant is not lost by mere nonuser. Unless the non-user is a consequence of something which prevents the user, and is utterly inconsistent with its enjoyment, it continues to exist, although more than twenty years have elapsed. The facts stated in the report bring the case within this well settled rule. White v. Crawford, 10 Mass. 183. Arnold v. Stevens, 24 Pick. 106. Jennison v. Walker, 11 Gray, 423. Bannon v. Angier, 2 Allen, 128. Owen v. Field, 102 Mass. 90, 114. The only question therefore to be considered is whether a well defined way was granted to Abram Williams, which was and still is by force of the grant appurtenant to the land now owned by the defendant. The plaintiff asked the court to instruct the jury that unless Abram Williams, while he owned the premises, located the way granted to him in Dwight’s deed by actual use or enjoyment, then no right of way or easement passed by his deed to William Williams, 2d. This instruction was properly refused. If the defendant’s case rested alone on the deed to Abram Williams, which gave only a right of way over the adjoining land without naming the purpose or use intended, or the precise portion of the land subjected to the easement, there would be much force in the plaintiff’s claim, that it would not have passed after thirty-two years without location by use and enjoyment. But by the language of the deed of de to Dickinson and of the subsequent deeds, through which the land comes to the plaintiff, the purpose of the way is named, its use is distinctly indicated, and its location is definitely determined. [232] It is a footway or bridle path on the north side of the strip four rods wide. The grant to Williams is thus clearly and distinctly defined, and the way is therefore located by the deeds under which the plaintiff claims. A strip of land, wide enough for a bridle path or footway, on the north side of the lot, is thus subjected in terms to the easement. Atkins v. Bordman, 2 Met. 457. Where the way is clearly defined by grant or reservation, use and enjoyment are not necessary for its continuance, unless the failing to use is caused by something so adverse to the use as to prevent it. White v. Crawford, supra, and cases cited. The way therefore was appurtenant to the land when Abram Williams conveyed to William Williams, 2d, and passed by the deed without being mentioned in express words. But the case does not rest upon the grant to Abram Williams alone, and the subsequent conveyances to the defendant. Under the rule established in Massachusetts a right of way may be established as appurtenant to land not only by express grant, but also by reservation in a deed of the tract over which the way is claimed, and will pass by deed of the land to which it is appurtenant without express words even. Kent v. Waite, 10 Pick. 138. Underwood v. Carney, 1 Cush. 285. Bowen v. Conner, 6 Cush. 132, 137. Brown v. Thissell, 6 Cush. 254, 257. Goodrich v. Burbank, 12 Allen, 459, 461. We have then a way appurtenant to the defendant’s land reserved in a long line of conveyances, and in the deed itself under which the plaintiff derives his title ; this way, though it has not been used, the jury has found not to have been extinguished by non-user; it therefore still exists as appurtenant to the defendant’s land. No question was made at the argument upon the ruling concerning a way of necessity, and as it has no bearing upon the case as presented to us, we have not considered it. Exceptions overruled.