White v. New York & New England Railroad , 1892 Mass. LEXIS 166 ( 1892 )

Morton, J.

In view of the facts in this case, we think that the deed from Partridge to the Norfolk County Railroad Company operated to except the passageway for the benefit of and as appurtenant to the larger tract, and that it passed with that to the plaintiff. The defendant does not claim that any importance is to be attached to the fact that the word “ reserving ” was used instead of “ excepting.” It insists, more broadly, that by the terms of the reservation the passageway was limited to Partridge for his life; or if that is not so, that, the railroad company having by its location acquired the- absolute right to use the tract for a railroad, all that remained in Partridge was the fee, out of which no way could be excepted; and that Partridge could create a perpetual easement only by a reservation in the nature of an implied grant, in which case the word “ heirs ” was necessary, and its omission was fatal.

We think it is evident from the situation of the land, and from the surrounding circumstances and those attending the giving of the deed, that it was the intention of the parties that the passageway should be annexed as a perpetual right to the larger tract. It was clear that the larger tract would be wholly inaccessible unless Partridge and his successors in title were to have the right to use this or some other way. The way had been used before the railroad was laid out.

Its use was continued without objection after the railroad was located. No petition for the assessment of damages, nor application for a crossing, was ever presented to the county commissioners. The consideration named in the deed was four hundred and fifty dollars, and the deed purported to convey the right to maintain and use the land for a railroad, and released the company from all “damages for making, maintaining, and using said railroad.” It would seem as if tlie whole matter had been settled by the giving and the taking of this deed. Nothing indicates that Partridge intended to place himself in a position less favorable than he would have occupied if he had petitioned for the assessment of his damages and for a crossing. And we think the reasonable inference is that both parties expected and intended the right to be a perpetual one.

We think, also, that this intention is effectually carried out by the deed. The railroad company could have relied upon its location and the rights acquired under it, leaving Partridge to his petition for damages and a crossing. It did not see fit to do that, but it elected to take a deed from him with full covenants of seisin and warranty. As between Partridge and it and their respective successors in title, it must be deemed to have elected to hold under that deed, and not under its location, and it cannot set up any claim under its location inconsistent with the rights given or reserved in the deed. It cannot use both as its advantage may decide. Hyde v. Baldwin, 17 Pick. 303, 308. Smith v. Smith, 14 Gray, 532. Hubbell v. Warren, 8 Allen, 173, 182. Watson v. Watson, 128 Mass. 152. Fitch v. Baldwin, 17 Johns. 161.

Having elected to take the deed and to hold under it, the railroad company was estopped to deny that Partridge had at least such an interest in the land conveyed to it that he could carve out of it the right of way in question, for the perpetual benefit of the land which he kept. The defendant does not question that an exception may be created by words of reservation, and it is clear that it may be done. Bowen v. Conner, 6 Cush. 132. Dennis v. Wilson, 107 Mass. 591, 592, 593. Wood v. Boyd, 145 Mass. 176. Winthrop v. Fairbanks, 41 Maine, 307. Smith v. Ladd, 41 Maine, 314. Herrick v. Marshall, 66 Maine, 435. Whether, in a given case, the language shall be construed to create an exception or a reservation, will depend upon the situation of the property and the surrounding circumstances, in the absence of a declaration in the deed by the parties of their intention as to the nature of a way. Dennis v. Wilson, 107 Mass. 591, 592. As already stated, the only reasonable construction in the present case would seem to be that it was the intention of the parties to annex the right of passing to the larger tract as a perpetual easement, and, the language of the deed being sufficient for that purpose, it follows that the pas- - sageway is to be so regarded. This view of the effect of the deed from Partridge to the Norfolk County Railroad Company renders it unnecessary to consider the effect of the deed and indenture from Ware to the defendant, or the acts of the defendant and its predecessors in maintaining the crossing for so many years.

Judgment on the verdict.