Simpson v. Boston & Maine Railroad

Hammond, J. As respects the record title, the rights of the parties depend upon the legal meaning of the following clause in the deed of Simpson to the Boston and Lowell Railroad Corporation : “ Reserving, however, a crossing or right of way to be maintained and kept in repair at the expense of said railroad corporation, and to be thirty feet wide and to cross said road or track on a line parallel with the southeasterly line of said Simpson’s land, and to be distant one hundred feet southwesterly therefrom.” If we assume in behalf of the plaintiffs that this right of way thus created was appurtenant to the land now owned by them, we are met by the question as to the duration of the easement. Was it to continue beyond the life of the grantor? Whatever may be the law elsewhere, it is settled in this Commonwealth that an easement ■ may be created by way of exception or reservation, and, as an exception may be created by words of reservation, little reliance can be placed upon the language used. Claflin v. Boston & Albany Railroad, 157 Mass. 489, 493, and cases cited. The clause in the deed could not operate by way of an exception, because it was a new right of way. Ashcroft v. Eastern Railroad, 126 Mass. 196. Claflin v. Boston & Albany Railroad, ubi supra. Hamlin v. New York & New England Railroad, 160 Mass. 459. [362] Nor could it operate as a reservation beyond the life of the grantor because of the absence of the word “ heirs.” The principles applicable to the case have been so fully explained in comparatively recent decisions of this court that it is unnecessary further to discuss them. See, in addition to the foregoing cases, Bean v. French, 140 Mass. 229; Wood v. Boyd, 145 Mass. 176; White v. New York & New England Railroad, 156 Mass. 181. The easement created by the deed continued only during the life of the grantor. As to the claim of a right of way by prescription, the plaintiffs are met .by St. 1892, c. 275, which reads thus: “No right of way across any railroad track or location which is in use for railroad purposes shall hereafter be acquired by prescription; but nothing herein contained shall affect any existing right of way.” The plaintiffs contend that this statute is not applicable here, because they were exercising the right of way under a claim of right, and that such a right is an “ existing right of way,” even if it is founded upon adverse use for a time less than twenty years. But with this interpretation of the statute we cannot agree. The statute was intended to prevent the acquisition of a right by prescription whether the adverse use had been begun prior to the passage of the statute or not, and the “ existing right of way ” means a right which at the time of the statute had fully ripened into a right by prescription or otherwise. Demurrer sustained, and bill dismissed.