Mount Hope Iron Co. v. Dearden

Holmes, J. It was not open to the respondents, after an interlocutory judgment, to which they had practically consented, to set up want of title in the petitioner as a bar to the petition. Brown v. Bulkley, 11 Cush. 168. Wonson v. Wonson, 14 Allen, 71, 81. Savery v. Taylor, 102 Mass. 509, 511. A more difficult question is raised by the attempt of the commissioners to set off to the petitioner all the rights in a passageway theretofore appurtenant to the whole estate, and to provide that the passageway should “ become exclusively appurtenant to the share set off to the petitioner.” If the right of way were over land of a stranger, and the parcel set off to the respondents 432 abutted upon it, there would be more force in the argument that such a provision amounted to a destruction of property, and that the commissioners had no more right to destroy it in this way than to order trees to be cut down and burned. For, of course, so much of the right as was incident to one parcel could not be transferred to the other. But in this case the passage was upon other land of the petitioner, and the parcel set off to the respondents was separated from it by that set off to the petitioner. Whether, under these circumstances, the respondents’ rights would have been extinguished, irrespective of the provision in question, as the petitioner contends, and whether an extinguishment which followed as merely incidental to an act otherwise within the commissioners’ power would affect the validity of that act, are questions which we need not consider, because we think a sufficient answer to the respondents’ argument, if sound, is to be found in the fact that the petitioner owned the servient estate. We see no reason why the extinguishment of a way over land of a party to the partition may not be awarded by the commissioners. In such a case, what is taken from one goes to the other, and must be allowed for in the partition. Exceptions overruled.