Wood v. Boyd , 145 Mass. 176 ( 1887 )

Morton, C. J.

The plaintiff’s lot was formerly a part of a larger lot owned by one Heard. In 1836, Heard conveyed the plaintiff’s lot to one Estabrook by a deed containing the following clause: “ reserving to said Heard, his heirs and assigns, the right of passageway from his dwelling-house to the turnpike aforesaid, and through the premises, as the same is now enjoyed.” This right of way was conveyed by deed of Heard, and by several mesne conveyances, to Ann B. Earle, who now owns and occupies the house formerly owned by Heard. It is this right of way, in favor of said Earle, which the plaintiff contends is an incumbrance on his estate, and within the covenant of his deed from the defendants. His deed contains a covenant that the granted premises are free from all incumbrances, and the question in this case is, What are the granted premises? The deed, after the description of the land by metes and bounds, contains this clause: “ reserving to the owner of the estate, and others adjoining on the south, a right of passageway over the within granted premises, as specified in deed of James Estabrook to Rodney Miller, dated November 22, 1839.”

We think the purpose and effect of this clause was to except out of the grant to the plaintiff any rights to use the passageway specified in the deed of Estabrook belonging to any of the owners of the estate formerly of Heard. The deed of Estabrook to Miller contains this clause: “ reserving to the owner and his assigns of the adjoining estate, formerly of said Heard, the right of a passageway from the dwelling-house on said estate to the turnpike aforesaid, and through the premises, as the same is now enjoyed.” Prior to this deed Heard had conveyed to one Clark, his heirs and assigns, all his estate south of the plaintiff’s lot, together with “ the right of a passageway from the dwelling-house, on the estate to the turnpike ” over the estate conveyed to Estabrook, “ meaning to convey the passageway as it is now enjoyed,” and there was a defined existing passageway, the same as is now used.

We are of opinion that both the above-cited clauses, in the deed of Estabrook to Miller and in the deed of the defendants to the plaintiff, operated as exceptions, and not as reservations. A reservation in a deed vests in the grantor some new right or interest not before existing in him. It cannot vest any right in a stranger to the deed. Murphy v. Lee, 144 Mass. 371. It operates by way of an implied grant; and, if it does not contain words of inheritance, it will give only an estate for the life of the grantor. The operation of an exception is to retain in the grantor some portion of his former estate, which by the exception is taken out of, or excluded from, the grant; and whatever is thus excepted remains in him as of his former title because it is not granted. Ashcroft v. Eastern Railroad, 126 Mass. 196. In both clauses the word “ reserving ” is used, but this is of little importance. The plain purpose of the parties was not to reserve any new right which should vest in the grantor, but to recognize, and except from the grant, rights of way existing by prior grants in third persons who were not parties to the deed. Nothing is reserved to the grantor in either deed; the terms used in both are “reserved to the owner of” the adjoining estate, and others. Both clauses are of no effect, unless they are held to be exceptions.

Construing the clause in the plaintiff’s deed as an exception, it qualifies and limits the estate granted. “ The granted premises” which are covenanted to be free from incumbrances is not the land in fee, but the fee diminished by existing easements, which are excepted out of the grant. Such easements are not incumbrances upon “the granted premises.” They are excepted as they existed, that is as perpetual easements, and there is no ground for contending that they terminated at the death of Earle or Clark.

Exceptions overruled.