Leonard v. Leonard , 84 Mass. 543 ( 1861 )

Bigelow, C. J.

On the facts proved and specially found by the jury, it is clear that the owner of lot B had no right of way by necessity over the parcel of land sold to Keith in 1831. At that time, he had another means of access to the highway from lot B, by his prescriptive right of way over the intermediate lot C, and thence through Ms own land to the road. When he sold to the defendant in 1844, he had the same right. It follows that, by conveying to him lot B, the easement over lot C passed as appurtenant, and a right of way by necessity passed by the grant over lot A. In other words, there was appurtenant to the land granted to the defendant a right of way to other land of the grantor, and there being no access to the highway except by the way appurtenant and by passing over the land of the grantor, a right of way by necessity was conveyed over lot A. In legal effect, the rights of the parties were the same as if lots A and B adjoined each other, instead of being separated by lot C, over which the right of way by prescription existed. Brigham, v. Smith, 4 Gray, 297, & cases cited.

The same result may be reached by a somewhat different process. It is always competent, in order to show the real intent of the parties to a deed, where it is not clearly expressed, or where some easement or privilege essential to the enjoyment of the land granted is left to implication, to show the local position of the land, its relative situation to other land of the grantor and to that of surrounding owners, the difficulty of gaining access to it, and the mode in which the grantor used and enjoyed it in connection with Ms own adjoining estate. When land is conveyed with no access to it except over other land of the grantor, the inference is that the grantor intended that a right of way over his other land should pass by the grant. If it be shown, in such a case, that a particular way was used for a long time over one parcel in order to get access to the other, it tends to show that the grantor deemed the way used by him to be convenient, useful and necessary, as appurtenant to the land granted, and thus indicates that it was his intention to convey it as an essential right or easement to the enjoyment of the estate. The evidence in this case proves that the owner of lots A and B, at the time of the grant to the defendant of the latter tract and for a long time previous, had gained access to it by passing through his lot A from Hall’s Lane. Prom this, in connection with the fact that there was no access to the highway from the land granted, the natural, necessary and legal inference is, that he intended to convey the same right or easement which he had previously used in connection with the land granted. Salisbury v. Andrews, 19 Pick. 250. Atkins v. Bordman, 2 Met. 464.

The right of the defendant to enter on the plaintiff’s land, and to pass over it in another direction than that in which the way had been generally used, was clear and unquestionable. The plaintiff having obstructed the passage by the usual path, the defendant had a right to enter and go over adjoining land, doing no unnecessary damage. Farnum v. Platt, 8 Pick. 339.

New trial granted.