Miller v. Washburn

DEVENS, J. By the conveyance from the defendant to Blood, he granted premises “ bounded on the east by a private road or way, and extending on a straight line one hundred and thirty-six feet on said way,” and thence continuing in the same course, bounded by said Washburn’s land, one hundred and ninety-three feet. He further granted thereby a right of way, to be used in common over and upon his land on the easterly side of the land conveyed, not less than thirty-three feet in width, and extending two hundred and forty feet from the southerly end of the lot conveyed. Without determining, as we are urged to do by the plaintiff, that the effect of this conveyance was to grant to Blood the fee in one half of the private way so far as it then existed and as his land was bounded upon it, a right of way, at least, was granted as appurtenant to the land conveyed in a strip of land thirty-three feet in width and two hundred and forty feet in length, even if the fee in the half thereof did not pass. Lewis v. Beattie, 105 Mass. 410. If a way is granted as appurtenant to a close, such way is appurtenant to all the parcels into which the close may be divided. Whitney v. Lee, 1 Allen, 198. When, therefore, Blood conveyed to Miller the southerly portion of this tract, bounding it one hundred and six feet on a proprietor’s way, “ with all the privileges and appurtenances thereto belonging,” as the way upon which the parcel was then bounded was the one described as such m the deed of Washburn, by this conveyance there was granted to Miller a right to use the way as appurtenant to the tract conveyed to him, although such right was not given in explicit terms, as in the deed from Washburn to Blood. The deed by which. — 375 — subsequently, Blood conveyed to Miller a right to use the way in question in common with others, was therefore superfluous ; but as its admission at the trial can have done the defendant no injury, his exception thereto must, on familiar principles, be overruled. The evidence offered by the defendant to show that the right intended to be granted was only to pass over the way, in order to reach the lower portion of the land, was also correctly rejected. By the proper construction of the deed, the right granted enabled the owner of the land to use the way in common with others to reach any part of his land which was made accessible thereby. It was not competent by paroi evidence to control the grant thus made, and to limit the grantee to a use of the way only for the purpose of reaching the lower portion of the land which remained to Blood after his deed to Miller. The defendant further offered to show that the limits of the way and its uses were known at the time of the deed to Blood; “ that the fence with the opening or bars was then standing there, and that the intent was to grant a right in the way as it then was, which included the right of maintaining the fence substantially as claimed by the defendant.” There was no ambiguity as to the right conveyed, and no paroi evidence was needed to apply the deed to its subject matter. Bond v. Fay, 12 Allen, 86. The. action had been brought against the defendant for erecting a fence, so that the plaintiff could only approach the way by a single opening which the defendant had left, and this was therefore a claim on behalf of the defendant to prove the intent of the parties to the deed that the fence should be maintained by the defendant, and a single opening therein be the only approach of the grantee to the way, by proving that the fence was thus maintained at the time of the conveyance. It was in response to this claim, and also that the way could only be used to reach the lower part of the land, that the presiding judge ruled that “ no paroi evidence was competent which should give to the defendant the right to build a fence in such a manner as to obstruct the free use by the plaintiff of any part of the way to any part of his land.” This ruling treats the rights of the parties as settled by the deed, and properly holds that the grant there made cannot be limited by paroi evidence. Where the fee to the middle of a way passed — 376 — by a deed of land bounded upon such way, it was held that this construction could not be controlled by paroi proof that the grantor, about the time of making the conveyance, had erected a permanent wall along the side thereof. Fisher v. Smith, 9 Gray, 441. So where an unrestricted right in a way is granted as appurtenant to certain premises, such right cannot be diminished by paroi proof that, at the time of the grant, a restricted use only was made of such way. Nor, in the connection in which the ruling is made, is it to be interpreted as authorizing the plaintiff to throw open the way any further than the exigencies and convenience of his business, in a reasonable and proper occupation of his land, demand, or to throw down fences which the defendant may erect along the line of the way, not interfering with the plaintiff in his reasonable use thereof. It affirms only that the rights of the parties must be determined by the construction of the deed, and not by the paroi evidence from which the defendant had sought to show an intent differing from such construction. Exceptions overruled.