Leonard v. Adams , 119 Mass. 366 ( 1876 )

Colt, J.

The plaintiff seeks to recover for a breach of the covenants of warranty and against incumbrances contained in the defendant’s deed to him in 1858. Among other causes of action he claims damages on account of a certain town road referred to in the deed as the road to Burncoat Pond; and also for the right of one Woodcock, and those claiming under him, to pass over the same. In 1841, while the defendant was owner of the premises, the town voted “ to discontinue the town road from near Samuel Adams to Burncoat Pond, so called, to a bridle road.”

The deed, under which the plaintiff claims, embraces in its description the whole width of the road. It is called a town road; it runs along the east side of the premises, and the east side of it is made the east side .of the lot conveyed. The deed contained a covenant that the premises described “ are free of all incumbrances, except the aforesaid road, so far as the same is not discontinued,” with the usual covenant to warrant and defend the same.

This deed, by its true construction, conveys only the fee in the road subject to the public easement, if any, then existing in it. The description of it as a town road, with the restricted covenant against incumbrances, implies that the land was subject to the public easement, except so far as the road had been discontinued by the proper authorities. Stetson v. Dow, 16 Gray, 372. Hollenbeck v. Rowley, 8 Allen, 473. Newhall v. Ireson, 8 Cush. 595. Boston v. Richardson, 13 Allen, 146.

It follows that the town way, or so much of it as then remained, was not an incumbrance within the meaning of the covenant, because the covenants in a deed attach only to the estate or premises intended to be conveyed. The words granted premises mean that interest in the land described which the deed purports to convey. Sweet v. Brown, 12 Met. 175. Hoxie v. Finney, 16 Gray, 332.

As to the other incumbrance, if the town road was not legally • discontinued by the proceedings in 1841, then the right of Woodcock, and those holding his estate, to pass over the same was no incumbrance on the granted premises, because it was merged in the public easement. And if the public easement was discontinued, then the facts in the case do not show a private right of way acquired by Woodcock, by grant or otherwise, before the town road was laid out, which would revive upon its abandonment. Nor has the right been since acquired by grant, and could not within the time limited have been secured by adverse use.

The plaintiff fails to establish these alleged incumbrances, and as to the covenant to warrant and defend, it is sufficient to say that it is not claimed that there has been any eviction by paramount title, or anything equivalent thereto. By the terms of the report the entry must be

Judgment, for the smaller sum, for the plaintiff.