O'Neil v. Holbrook

Endicott, J. This case turns upon the effect to be given to the clause in the deed of Sullivan Sumner to the defendants, wherein he covenants, for himself, his heirs and assigns, that the parcel of land between the land conveyed and the main road, and between the hotel and the land belonging to the proprietors of the brick meeting-house “ shall forever remain common.” That this creates an easement in the parcel in favor of the defendants, and an incumbrance thereon in the hands of all claiming title thereto under Sullivan Sumner, we can have no question, unless the language, describing it as common, is too vague, indefinite and uncertain to create any permanent easement. But, construing the language in connection with the subject matter and purposes of the conveyance, the uses to which the parcel was subject at the time of the conveyance, and the previous deed of Darius Sumner, who formerly owned all the land now owned by the plaintiff, the defendants, and the proprietors of the brick meeting-house, we are of opinion that a permanent easement in the parcel was created by Sullivan Sumner’s deed, of a distinct and definite character. In 1820, Darius Sumner conveyed to Perley Hunt and others, as proprietors in common, the lot now occupied by the old brick meeting-house, as delin - eated on the plan. In the granting clause of the deed, he declares that the lot is conveyed to the grantees for the purpose of building a brick meeting-house and the necessary sheds thereon [105] the remainder to he kept for a common and for no other purpose, and that the grantor’s adjoining land, between the land conveyed and the east line of his dwelling-house, shall be laid common, free from fences and other obstructions, so as to constitute but one common between the meeting-house and the grantor’s house. The grantor’s house is the same described in Sullivan Sumner’s deed as the hotel; and the adjoining land, which Darius, in his deed, says shall be part of the common with the meeting-house common, is the same parcel which Sullivan Sumner in his deed covenants “ shall forever remain common.” The word “ common ” in this connection clearly means an open, uninclosed space around and near a meeting-house, such as is usual around meeting-houses in country villages in this Commonwealth. Such an easement for such a use may be created by deed. The provisions of the deed of Darius Sumner in this regard appear to have been complied with, and the parcel in question was used in that manner during the life of Darius Sumner, and until 1850. Whether the deed of Darius Sumner created a permanent incumbrance on the land, or was a personal contract, as contended by the plaintiff, it is not necessary to inquire. If it was an easement,. Sullivan could only convey subject to that easement, and his covenant with the defendants that it should remain common bound him, his heirs and assigns, not to disturb the easement already existing. As the plaintiff claims under him, he cannot deny his right to make such a covenant and admit the defendants to the enjoyment of the privilege. If it was not an easement, then Sullivan Sumner had the right to create such an easement in the parcel, for he owned it, and the deed of Darius Sumner is competent, the plaintiff claiming under him, to show the character of the use to which he had subjected it, and which actually existed when Sullivan conveyed to these defendants. If the covenant that a parcel of the grantor’s adjoining land shall forever remain common is not sufficiently definite in making a conveyance to a religious society, as explaining the character and kind of common intended; the uses to which it was then subjected may be shown, and the manner in which the use originated may also be slnwn by the deed of a former owner of the parcel. [106] The plaintiff therefore took his deed subject to the covenants of Sullivan Sumner, and cannot interfere with the use of the parcel as a common adjacent to the meeting-house. The fact that Sullivan Sumner afterwards conveyed the locus with covenants of warranty against incumbrances cannot affect the defendants, whose deed was recorded previously to such conveyance and to the mesne conveyances through which the plaintiff derives his title from Sullivan Sumner. There is therefore no occasion for relief in equity, and the en - try must be Bill dismissed.