Kenney v. Marino , 350 Mass. 534 ( 1966 )

350 Mass. 534 (1966) 215 N.E.2d 747

JAMES F. KENNEY & another
vs.
ANDREA MARINO & another.

Supreme Judicial Court of Massachusetts, Worcester.

February 11, 1966. April 5, 1966.

Present: WILKINS, C.J., WHITTEMORE, CUTTER, SPIEGEL, & REARDON, JJ.

Carlton W. Spencer (J. Laurence Doyle with him) for the defendants.

No argument or brief for the plaintiffs.

WHITTEMORE, J.

The defendants have appealed from a final decree of the Superior Court enjoining them from passing over the plaintiffs' premises.

The plaintiffs and the defendants own and occupy adjacent premises on Purchase Street, Milford. At issue is the right of the defendants to use a private way on the plaintiffs' land, adjacent to the southerly side line of the defendants' property. In the defendants' chain of title is a deed dated March 27, 1893, that describes the premises in part as follows: "Beginning at the northeasterly corner ... thence southerly by and along said road ... to a private way separating other land of the grantors; thence by and with said private way 89 feet more or less...." The deed also provides that "[i]t is a condition of this deed that the grantors and their assigns shall forever keep open said private way for the use of teams or otherwise for the benefit of grantee." The habendum reads: "To have and to hold the granted premises, with all the privileges and appurtenances thereto belonging, to the said ... [grantee] and his heirs and assigns, to their own use and behoof forever." This deed created an easement that ran with the land. The judge's ruling that it was limited to the immediate grantee was error. The absence of the words "and his heirs and assigns" after the words "for the benefit of the grantee" in the description of the easement is inconsequential. "It is the function of the habendum to declare the extent of the estate conveyed." Brooks v. West Boston Gas Co. 260 Mass. 407, 409.

The deed does not, as the judge ruled, show an intent to create only a limited personal right. The use of the word "forever" in stating the obligation of "the grantors and their assigns" to keep open the private way negatives any such implication, even if it could otherwise be thought present in the light of the habendum.

Additionally, the description of the parcel as bounded on the private way confirmed the creation of an easement of passage. Murphy v. Mart Realty of Brockton, Inc. 348 Mass. 675, 677-678.

The absence of a reference to the right of way in intervening deeds did not release it. The well settled rule that appurtenant easements pass by grant without specific mention (Brown v. Thissell, 6 Cush. 254, 257) was made statutory by St. 1912, c. 502, § 21, now in substance G.L.c. 183, § 15.

The final decree is reversed. A decree is to enter declaring that the right of way is appurtenant to the defendants' land. The defendants are to have costs of appeal.

So ordered.