Stearns v. Mullen , 70 Mass. 151 ( 1855 )

Shaw, C. J.

This is an action of tort, in the nature of tres- . pass quare clausum. The close is described as a piece of land about sixteen feet wide, adjoining Bridge Street in Springfield. It is agreed that in 1844 the plaintiff owned a small lot of land bounding on Bridge Street, of which this narrow strip of land was a part, and then conveyed it to Cook by a description which, in our opinion, excepted the soil of the sixteen foot lane. When the conveyance was made, no lane or passage way existed there. The description is, “running westerly on Bridge Street forty one feet six inches to a passage way reserved by me to be used as such, and to be used by the grantee and his assigns as a passage way in common with myself and others under me.” If it had been intended to pass the fee of the soil of the lane to the grantee, he would have bounded it, on that side, on Champion’s heirs, who were his conterminous proprietors on the other side of the lane, and would then have reserved to himself and his heirs the easement of a right of way, instead of granting one to the grantee of the lot. Cook conveyed to Stebbins, and after-wards Stebbins conveyed the rear part to Barnes, under whom the defendant justifies. In this deed, Stebbins bounds his grantee on the easterly side of the lane, with a right of way in the lane, showing how the grantees under Stearns’s original deed to Cook understood it, as excluding the soil, but granting the right of way. The subsequent insolvency of Stearns, and the conveyance of all his estate to his assignees, does not affect his title when the alleged trespass was committed; because whatever title passed to the assignees was reconveyed to him by quitclaim deed.

We think, under this view, that the plaintiff has not parted with his title to the soil of the passage way, and therefore that he can maintain an action of trespass, unless the defendant can justify under Barnes. The plaintiff does not claim in virtue of an easement reserved to himself and his heirs in his deed to Cook, even if the words are such as would constitute the reservation of an easement out of land the fee of which is conveyed. B-ut he claims as owner in fee, including every right to the fee of the soil,which he has not parted with.

As to the other point, we can entertain no doubt that Cook and his grantees, by the original deed of Stearns, took the easement of a right of way appurtenant to the land. By one and the same deed, for one consideration, a man conveys a parcel out of a larger tract of land, and grants a right of way to him and his heirs in his own other land, obviously useful and necessary to the beneficial use and enjoyment of the land granted ; can it be doubted that the intent was to grant the easement as appurtenant, and to pass with it 1 We think not. It is equivalent to a grant of the right of way to Cook and his heirs, proprietors of the land granted. This being the case, Barnes took no right of way as appurtenant to the land afterwards acquired of the heirs of Lombard, and could convey no such right to the defendant; his justification therefore is not established.

Judgment for the plaintiff\ for nominal damages.