Handy v. Foley , 121 Mass. 258 ( 1876 )

Morton, J.

The heirs of Seba Carpenter, being the owners of a tract of land fronting on the “ Norton road,” conveyed the front part of it to Gideon M. Horton, by a deed which contained the following reservation: “Forever reserving to ourselves the right to pass and repass with teams, &c., across the north end and east side of said lot to the said road, through gates and bars.” They afterwards conveyed to James M. Solomon the rear part of the entire tract, “ including all the right of way from said lot to and from the highway leading to Norton, that now is claimed by the grantees of this deed.” The mt first conveyed is now owned by the plaintiff, and the second lot is owned by the defendant.

We have no doubt that the right of way reserved by the deed to Horton was intended and understood to be appurtenant to the rear lot retained by the grantors. The reservation does not specify the rear lot as one of the termini of the way, but the inference is irresistible that it was intended to be. The actual terminus of the way is the rear lot, and the two lots are so situated with regard to each other that there is no way from the rear lot to the road except over the front land adjoining. The way was obviously useful and necessary to the enjoyment of the rear lot, and apparently could be useful for no other purpose. The case cannot be distinguished from Dennis v. Wilson, 107 Mass. 591.

The plaintiff contends that, as there are no words of inheritance in the reservation, a life estate only was reserved. But if this be so, the way was still appurtenant to the rear lot, would continue during the life of any of the heirs of Seba Carpenter, and would pass by a deed of such lot, even if it was not specifically mentioned. Dennis v. Wilson, ubi supra, and eases cited. Peck v. Conway, 119 Mass. 546. It does not appear, and is not contended, that all of said heirs are dead. The ruling that the defendant had no right of way over the plaintiff’s land was therefore erroneous.

As there must be a new trial upon this ground, it is not necessary to consider whether, under the declaration, the plaintiff is confined to proof of a single act of trespass. The failure to allege, in the usual form, a trespass on a specified day with a continuando, is, at most, an error in form, which may be cured by an amendment of the declaration. Exceptions sustained.