Butterfield v. Reed

Morton, J. The defendant justifies under his deed. The plaintiff contends that he took under it no interest in the premises described in it. But we think it is clear that he did. Mrs. Randall took under her father’s will a life estate, which she could and did convey to the defendant by the deed, and the two daughters took the remainder in fee subject to the contingency that it would go to the children of the son if they died before their mother. It is too well settled in this State to admit of question now that such an interest may be conveyed; and there can be no question that it was conveyed by the deed in this case to the defendant. Putnam v. Story, 132 Mass. 205. Dole v. Keyes, 143 [369] Mass. 237. Dodd v. Winship, 144 Mass. 461. Wainwright v. Sawyer, 150 Mass. 168. The interest of the daughters was not a mere possibility, but was a vested interest. Putnam v. Story, supra. We see nothing in the extract from the will with which we have been furnished indicating an intention on the part of the testator that Mrs. Eandall should hold the remainder in trust for the parties entitled to it. The attempted restraint upon alienation in the concluding clause is contrary to law, and ineffectual. Hall v. Tufts, 18 Pick, 455. Blackstone Bank v. Davis, 21 Pick. 42. Gleason v. Fayerweather, 4 Gray, 348. The plaintiff contends, in the next place, that the grantors were disseised by her at the time when they made and delivered the deed to the defendant. But the nature of the defendant’s right, being a right of flowage, was such that its continued existence was consistent with the use and occupation of the premises by the plaintiff. There was nothing in the nature of the acts done by the plaintiff upon the premises that was an interference with or adverse to the right of the defendant or his predecessors in title. So long as the defendant and his predecessors in title did not exercise the right of flowage, the plaintiff and her predecessors in title were at liberty to use the land. Doubtless the plaintiff and those who preceded her could have used the premises in so adverse and exclusive a manner that the lapse of twenty years would have barred the right of the defendant and those under whom he claims. But the use in the present case consisted in cutting hay, digging out muck, enlarging and using springs, and occupying a portion of it for a hen-house and hen-yard. There was nothing in all this that was adverse to, or infringed upon, the defendant’s right. Arnold v. Stevens, 24 Pick. 106. Barnes v. Lloyd, 112 Mass. 224. The jury, under instructions not objected to as to what would constitute an adverse use, have found that the right of flowage has not been lost by adverse use on the part of the plaintiff and those under whom she claims. We think there was evidence warranting such a finding. The plaintiff also contends that the right of flowage has been lost by abandonment. The right rests upon an actual grant. It is well settled that an estate or easement derived from an actual grant is not lost by mere non-use. White v. Crawford, 10 Mass. 183. Arnold v. Stevens, 24 Pick. 106. Owen v. Field, 102 Mass. [370] 90, 114. Barnes v. Lloyd, 112 Mass. 224. There was evidence in the case that the right had not been abandoned. It was for the jury to say what weight should be given to the filling of the raceway. It could not be said that the consenting to it by the owner of the privilege was a conclusive act of abandonment, nor that the putting of the wheel into the wasteway was not a user of the easement. The jury, under instructions not otherwise objected to, have found that the right was not abandoned, and we think there was evidence justifying the finding. Mrs. Randall was properly allowed to testify to her acts and intentions as bearing upon the question of abandonment. The question of abandonment is primarily one of intent; and when the intent of a party in doing or omitting to do certain acts is in question, he may testify to it as to any other fact. Snow v. Paine, 114 Mass. 520. In this view, the question whether she paid her-tax as a tax upon a mill privilege was competent. We discover no error in the rulings or refusals to rule. Exceptions overruled.