#### Mary White *versus*Phinley Crawford.

A reservation of a right of way by a grantor in a deed poll, to himself *or*his heirs, was construed to be a reservation to himself *and*his heirs.

A right of way proved by a grant or reservation is not lost by non-user for twenty years.

This was an action of the case, wherein the plaintiff declares that, on the 13th of May, 1807, and long before, and ever since, she was possessed of a certain farm in Bath, formerly owned by her late husband, *Joseph White,*deceased, bounded on one side by land of the defendant, and on another side by *High*Street: and that she then had, and still ought to have, a drift and cart-way through the defendant’s land to the *High*Street aforesaid, for herself, horses, cattle, and carts, to pass and repass, as they had occasion. Yet the said *Crawford,*contriving, &c., on the day aforesaid, stopped up the said way, and has ever since kept the same stopped up, to the day of purchasing her writ, December 19, 1809, so that the plaintiff could not, during all that time, make any use of it, &c.

*192The action was tried upon the general issue, September term, 1811, in this county, before Thatcher, J. When the plaintiff, to maintain the issue on her part, produced the copy of a deed from her said late husband to *William Swanton,*dated April 6, 1773, by which a piece of land, including the land now owned [ * 184 ] and occupied by the defendant, * was conveyed to *Swanton*in fee. At the end of this deed, and after the conclusion, are the following words, *viz.: “*N. B. It is agreed, before signing, that the said *White or*his heirs is for to have privilege of a road to pass and repass from the highway, by the land of *William Sylvester,*across to his own land, and said *Swanton*is to maintain said fence at his own cost.” The plaintiff then exhibited a devise, by her late husband, of the use and improvement of all his real estate during her natural life; also the deposition of *E. H. Page,*testifying, in substance, that *he*is well acquainted with the land now owned and occupied by the defendant; that the southerly part of a house lately built by the defendant stands upon land over which the said *Joseph White*formerly had and used a way, leading from his farm across to the highway; that he believes *White*used said way for his cart and oxen up to the revolutionary war in 1775, but does not know that he or any other person has used it since; also the deposition of *Nathan Donnell,*testifying that he had frequently seen *White*making use of said way previously to the years 1773 or 1774, but since that time has not known any use made of it by said *White*or any other person; that he was present, and heard *Joseph White,*Jun., tell the defendant not to build in that place, as his father had reserved a right of way there, but does not recollect the exact time of this prohibition, or what was the defendant’s reply ; also the deposition of *W. Broivn,*testifying that he was present some four or five years before the death of *White,*when there was an altercation between him and one *Simeon Turner,*to whom the witness supposed the land then belonged; that *White*said he had a right of way through the land, and began to pull down the stone wall which was standing between the same and *White’s*land, saying he would have the way through to *High*Street, as he had reserved in his deed to *Swanton;*that said *Turner*then said, that if *White*would desist from pulling down the wall, he would settle the dispute with him, provided he had any way reserved, as he mentioned.

The defendant, in support of the issue on his part, produced a conveyance with warranty of the land, over which [ * 185 ] * the way is claimed, from *E. Jones,*dated November 1, 1806; a conveyance of the same from *Elisha Turner*to said *Jones,*dated September 6, 1.803 ; a like conveyance from *193*Simeon Turner,*to *Elisha Turner,*dated January 21,1794; and one from *William Swanton*to *Simeon Turner,*dated February 6,1782, in which last deed the land is described as in the deed from *White*to *Swanton;*and after the conclusion of it are these words, *viz.: “*N. B. It is agreed, before signing, that *Joseph White*and his heirs are to have the privilege of a road, to pass or repass from the highway, by the land in possession of widow *Hobby,*to said *White’s*own land; and said *Turner*is to maintain the fence at his own cost: ” also the deposition of *William Webb,*testifying that he came to *Bath*in March, 1783 ; that *Simeon Turner*then lived on the land purchased by him of *Swanton;*that there was a stone wall between that and *White’s*land; that there was then no gap or opening through the said wall; and that, if ever there had been such an opening, it must have been previous to that time; that there had been none such since 1783 ; and that he had heard that *White*used such a way as is claimed before the revolution, but had never heard of its being used since by *White*or any other person.

Upon this evidence the judge directed the jury, that, if they were satisfied there had been twenty years’ continued *non-user*of the right of way, as contended by the defendant, they ought to find their verdict that he was not guilty ; otherwise their verdict ought to be in favor of the plaintiff, and for such damages as they believed she had sustained, which probably they would consider, under the circumstances of the case, to be no more than nominal.

A verdict being returned for the plaintiff, the defendant filed exceptions to the judge’s directions, and the cause stood continued to the last June term, in this county, when

*Coffin*moved, on the part of the defendant,

for a new trial, contending, 1. That the evidence did not support the declaration. The reservation in *White’s*deed to *Swanton** is of a footway only, or *jus eundi et ambulandi hominis,*(1) [ * 186 ] whereas the declaration is for a disturbance in a drift or cart-way. 2. The words in the deed relied on are insufficient to create the easement, being the words of the grantor only, repugnant to the deed, and added after its conclusion, they cannot operate to abridge the freehold before created by him. 3. The right pretended to be reserved is merely personal or in gross, and not appurtenant to any particular tenement, as the plaintiff alleges. If, then, it survived her husband, it would pass to his heirs, and not to a devisee of land ; but it could not descend, being reserved only to him *or*his heirs, and in such a reservation in a deed poll the word o'- is a disjunctive, and the interest terminates with the grantor’s *194life. (2) 4. The action is possessory, yet the plaintiff has never used, or attempted to use, the way claimed; and use is the only possible possession of the easement; she was, then, never in possession. 5. A conclusive reason against a recovery by the plaintiff, or even by her husband, if he were living, is the length of time during which the supposed way has been shut up; for it is proved not to have been used since 1784, and not proved to have been used since 1775, — a period in one case of twenty-six, and in the other of thirty-five, years. Twenty years’ *non-user*is sufficient to extinguish the easement, as the law is laid down in the cases of *Holcroft*vs. *Heel,*(3) and *Campbell*vs. *Wilson.*(4)

*Wilde*for the plaintiff.

The action was continued to this term for advisement: now the opinion of the Court was delivered by

(1)

*Co. Lit.*56, *a.*

(2)

 5 *Co.*111.— *Co. Lit.*214, *a.*

(3)

 1 *Bos. & Pul.*400.

(4)

 3 *East,*299

Sewall, J.

In an action for disturbance of a right of way which the plaintiff claims to have in and over the land of the defendant, from a certain farm in the occupation of the plaintiff to the *High Street*in *Bath,*the plaintiff having recovered a verdict, the case is brought before us upon exceptions, taken for the defendant, to the opinion and direction of the judge who presided at the trial. As explained by the argument of the defendant’s counsel, the ground of these exceptions seems to be, that the judge permitted [*187] a verdict for * the plaintiff, when no title to the way in question had been proved on her part, and when the evidence proved an extinguishment, by *non-user,*of the way, to which the plaintiff had supposed hersélf entitled.

The plaintiff shows a title to the farm, one of the *termini*of the supposed way, by a devise in the last will of her* late husband, *Joseph White.*He devises to her, for her life, all his real estate. If the way in question was *Joseph White's,*either as a hereditament to him and his heirs, or as an appurtenance of his farm, this action is maintained for the disturbance of it, unless the right itself had been extinguished and lost.

The defendant’s land, over which the way is claimed, was once parcel of *Joseph White's*farm, or an adjacent tract of land, which he sold, in 1773, to one *William Swanton,*under whom the defendant claims by several intermediate conveyances. The conveyance from *Joseph White*to *Swanton*contains this memorandum, inserted after the formal conclusion of the deed, but before the signatures “ *N. B. It is agreed, before signing, that the said*White, *or his heirs, is for to have the privilege of a road to pass and repass from the highway by the land of*W. S. *across to his own land,*Swanton *to**195*maintain the fence,”*&c.; and in a deed from *Swanton*to *Turner,*read on the defendant’s part, dated February 6, 1789, this memo* randum is repeated in the same words, changing the names of the parties, and with this variation in the expression, that the reservation or exception is to *Joseph White and*his heirs. The memorandum is inserted also after the conclusion of the deed. The way or road in question is not noticed or mentioned in any of the posterior conveyances of the land over which it is claimed.

The defendant contends that the exception or grant in *White’s*deed was of a way *in gross,*to *him,*only; either because a way in gross is only to be reserved or granted to the individual party to whom it is made; or because the disjunctive expression used, *viz.,*to him *or*his heirs, must *be so con- [ * 188 ] strued as to render void the grant to the heirs; and then the right of way ceased at the death of *Joseph White.*

As to ways in gross, that they may be granted, or may accrue, in various forms, to one and his heirs and assigns, there can be no doubt. There is a strong example of such a grant in the case of *Senhouse*vs. *Christian & Al.,*(5) upon which the defendants justified as heirs of the original grantee. And as to the construction contended for, although it is supported by a *dictum*of Lord *Coke’s,*it is a strictness not to be tolerated at the present day. The intention of the parties is to be effectuated; and, for that purpose, it is not unusual to construe *or*as *and.*So *Swanton*very honestly understood it, in repeating the reservation in his deed to *Turner.*

There is, however, room, and sufficient legal authority, we conceive, for a construction still more consonant with the intention of the parties, under the circumstances of this case. From the testimony reported, it appears that *White,*before 1773, before his con veyance to *Swanton,*had made for himself, and used, a passage-way, through this close, in going from his farm to the street. The memorandum may be construed a recognition of that way, and a continuance of it, in the form of an exception in *White’s*deed; and, being made by the owner of the farm for himself, then the occupant of it, and for the use of the farm according to the *terminus ad quern,*we should have no hesitation, if it was required to go into that question, to consider the exception as availing to *White,*and to his heirs and assigns, as occupants of that farm; and, in fact, as an exception which created a right of way appurtenant to that farm. But it is immaterial, in the present case, whether the exception availed, as a contract for a way in gross to *White*and his heirs, ot as appurtenant to his farm ; as, in either case, the title of the plain tiff to have the way is maintained, supposing its continuance.

*196As to the loss of the right of way by *non-user,*the defence principally relied upon at the trial, and in which the [ ***189 ] * defendant was in some measure sanctioned or favored by the opinion of the judge, we are not aware of any rule or principle to that effect. On the contrary, even a right of way depending upon evidence from prescriptive use is not lost by a *nonuser,*or tortious interruption of the use for ten or twenty years, if tliei e is evidence of a usage beyond time of memory, previous to the interruption or neglect. (6) We should suppose the case of a grant or exception, which affords the most satisfactory proof of the origin of a right of way, had at least as much security as a right prescrip tively proved by use and permission, the evidence of which becomes precarious and uncertain by long interruption or neglect.

In the case at bar, if there was no evidence of an actual use of this way, there was a recognition of it in 1782, of a claim and controversy respecting it during the ownership of *Simeon Turner,*and a promise on his part to allow it, if there was a reservation of it, as *Joseph White*alleged.

And when this defendant built his house, so as to cover or encroach on this way, he was notified, by one of *White’s*children and heirs, of the right claimed on their part in that land.

Whatever may be" said, therefore, of the legal doctrine of a loss by *non-user*or neglect, we cannot say that the verdict is without evidence, or against the evidence before the jury at the trial; and then the fact of a use within twenty years must be considered as settled, if that was necessary to the plaintiff’s right of action. But we conceive it was not. The authority cited for the defendant upon this point is not of a right lost, but of another concurrent right gained, by a use of twenty years.

Upon the whole, the defendant claims under a title in which this right of way was excepted : he holds subject to that right, if it has not been released or extinguished; and of a release, or extinguishment of the right, there is no evidence, *(a)*

*Judgment according to the verdict.*

ADDITIONAL NOTE

[A party’s neglecting for seven or eight years to cause the removal from his land of a house wrongfully erected there, and which obstructs his way, is not an abandonment of such way. Otherwise, it seems, had he himself erected the house. — *Rogert*vs. *Stewart,*5 *Verm.*215

*197A way is not lost, in Massachusetts, by *non-user*for less than twenty years.— *Emerson*vs. Wiley, 10 *Pick.*310. — (2 *Whart.*123.)

A plea of twenty years’ right of way, under 2 and 3 *Will.*4, c. 71, is not defeated by proof of a temporary *non-user*under an agreement of the *parties.—Payne*vs. Shedden, 1 *M.*& *Rob.*382.

One who receives a grant of the right to dig ore in another’s land, does not forfeit it by a mere neglect for forty years to exercise it, without any act of adverse enjoyment by the owner of the land. — *Arnold*vs. *Stevens,*24 *Pick. 106.*— See *Green*vs. Chelsea, *Ibid.*71. — F. H.]

(5)

 1 *D. & E.*560.

(6)

*Corn. Dig., Proscription,*E, 2.

(a)

**[As twenty years’ enjoyment of a right, unexplained, affords the presumption of e grant, so *non-user*for such a period, unless accounted for, affords that of a release or surrender of the right. — *Mathews on Presump.*— 2 *Barn.*& *Ald*791. — 3 *Barn.*& *Cresw.*339.—See *Hoffman*vs. *Savage,*15 *Mass. Rep.*130. — Ed.]