Harlow v. Whitcher

Devens, J. It was ruled, at the trial, that the release of the Woburn Savings Bank to Jacob C. Whitcher conveyed only the bank’s interest in the land described; and that the right to drain from the house which had been erected thereon into the cellar of the barn, which was on the other part of the land, was neither released nor conveyed, even if such drain was necessary for the beneficial enjoyment of the parcel described, and it was not possible to provide any other mode of drainage with reasonable care and expense. The plaintiff contends that whatever easements are appurtenant to land, specifically described in a deed, pass by the force [555] of it, even if the words “ together, with the privileges and appurtenances thereto belonging ” are omitted; and that the grantor conveys by his deed, as appurtenant, whatever he has power to grant, if practically annexed to the premises at the time of the grant, and if necessary to their enjoyment in the condition of the estate at the time. Oliver v. Dickinson, 100 Mass. 114. Philbrick v. Ewing, 97 Mass. 133. If it be conceded that, if a conveyance of premises specifically described had been made by an owner in fee absolute of the whole tract, it would have passed without mention, as parcel of the premises granted, any easement or privilege similar to the right of drainage here claimed, ( Thayer v. Payne, 2 Cush. 327; Watts v. Kelson, L. R. 6 Ch. 166,) this would not be decisive in favor of the plaintiff. The bank, after reciting in the instrument of release the mortgage made by Whitcher and held by it over the whole premises, released to him the right, title, and interest which it had by virtue of such mortgage in a certain described parcel of land. While Whitcher, as mortgagor in possession, occupied the whole premises, he might occupy them in any way he saw fit, practically giving to one parcel an easement and imposing a servitude upon another. But when one of these parcels is released to him by the mortgagee, it is not therefore to be deemed that the mortgagee has assented that, in favor of it, a servitude shall be imposed upon the other parcel. The release of certain described premises by the mortgagee ought not to be construed as a conveyance to the releasee of rights in the remainder of the estate, which, without the consent of the mortgagee, the releasee had seen fit to attach thereto. The grantor of an absolute fee in a similar case has by his own act, or that of those under whom he claims; created a servitude in the remainder of the estate for the benefit of the parcel granted, and may properly be held to intend by his conveyance of the parcel to convey this also. Judgment on the verdict.