
    * John A. Parker and Others versus Francis Smith and Others.
    If land be conveyed as bounded on a way upon one side, this is not merely a description, but an implied covenant that there is such a way; and fills, whether the and be above or below high-water mark.
    
      But if there he a way in fact existing, which does not extend through the whole line of the land granted, the parties shall be supposed to have had reference to such existing way, as a boundary, as far as it extends, and not to have contemplated a way coextensive with the land.
    This was an action of trespass upon the case for obstructing a way which the plaintiffs declared they had, appurtenant to their store, and land under and adjoining the same in New Bedford. The obstruction complained of was occasioned by a building or store, which the defendants had erected upon the ground over which the plaintiffs say their way runs, so near that they could not open their doors or windows.
    Trial was had upon the general issue before Putnam, J., at the sittings at Taunton, after October term, 1819.—The plaintiffs built their store in 1816, and the defendants theirs in 1817.
    On the 25th of October, 1769, one Joseph Russell conveyed the land, on which the store of the plaintiffs stands, to one Benjamin Taler, from whom the plaintiffs derive their title through several mesne conveyances, the land conveyed being thus described; “ beginning at a stake in the corner of two ways or streets, and from said stake east about fourteen rods and three quarters, to high-water mark, and the same course into the river; thence, beginning at the said stake, and from thence north eight rods to a stake, and from thence east to the river or salt water ; together with a privilege in all the ways or streets that are or shall be laid out in the new settlement, to be used in common with the other owners of the lots in said new settlement.—The beforesaid lot of land bounds southward and westward on ways or streets left for the use of the lots in said settlement, east on the river or salt water, north on my own land.” The plaintiffs proved that they built their store on the land above described, and that they were seised and possessed of the same at the time when the defendants erected their store on the [ *414 ] south side of the plaintiffs, on the * ground which the plaintiffs alleged to have been left as a way or street. The plaintiffs also gave evidence tending to prove that their store was placed above the low-water mark; and the defendants gave evidence tending to prove that it was placed below low-water mark, and so not within the bounds of the lot originally conveyed by Joseph Russell; all which evidence was left to the jury, and they found that the store was placed above the low-water mark.
    The defendants contended that Russell’s deed to Taber did not contain any grant of a right of way ; and if it did, that it extended to high-water mark only; and that the land to the eastward, between nigh and low-water mark, still belonged to Russell; and that the de fendants, claiming under him, had a right to place their store upon it
    
      But the judge was of opinion that the deed from Russell to Taber conveyed the land to low-water mark, that being less than one hundred rods from the upland ; and that the grantor, having bounded the land southwardly and westwardly on ways or streets left for the use of the lots in said settlement, could not himself rightfully obstruct the same; and that his heirs had no better right to do it than the grant- or ; that the deed must be construed as a grant or declaration, at least so far as should relate to the grantor, and those who should claim under him, that the land to the southward and westward of the lot granted, then was, and should be continued, a way for the use of the owners and occupiers of that lot, in common with the owners and occupiers of other lots. And the judge so instructed the jury; observing that Mr. Russell (who, it was admitted, was the owner of all the land where New Bedford, the new settlement above referred to, stands) was probably fully compensated for the land thus left for ways or streets, by the increased value of the lots, which hé sold with the privilege of using the same streets.
    The judge further instructed the jury, that as the lot extended eastward to the low-water mark, the way must * be intended or construed as extending to low-water [ * 415 ] mark also; and that the clause in the deed of Russell to Taber, “with a privilege of all ways already laid out, or which should be laid out,” &c., might be considered as a covenant, that the grantee and his assigns should have a right in the ways, which the grantor or his heirs might lay out in the new settlement, so far, at least, that he or they should not obstruct the same.
    The defendants offered in evidence the record of the laying out of Prospect Street by the selectmen of New Bedford in 1769, after the deed from Russell to Taber; and contended that, as that street stopped at high-water mark, it tended to prove that the plaintiffs had not a right of way to the eastward of that street extending to low-water mark.
    But the judge instructed the jury, that the way laid out by the selectmen did not prejudice the right which the grantees of Russell had prior to such laying out.
    It was proved that Prospect Street stopped at the bank; but that in 1770 the passage was made convenient to the water, before which time the passage down the bluff was steep and inconvenient, and the tides used to flow up to the foot of the bluff.
    A verdict being returned for the plaintiffs, a new trial was moved for by the defendants, for the misdirection of the judge.
    
      Nye, for the plaintiffs.
    
      Webster and L. Williams, for the defendants.
   Parker, 0. J.,

delivered the opinion of the Court.

. The principal question in this case arises upon the construction of the deed of Joseph Russell to Benjamin Taler; in which he conveys a piece of land in what is now the town of New Bedford, bounding it southwardly and westwardly on a way or street. By this description the grantor and his heirs are estopped from denying that there is a street or way to the extent of the land on those two sides. We consider this to be not merely a descrip[*416] tian, but an implied * covenant that there are such streets. It probably entered much into the consideration of the purchase, that the lot fronted upon two ways which would be always kept open, and, indeed, could never be shut without a right to damages in the grantee or his assigns.

This doctrine does not seem to be disputed, so far as it is applied to the upland granted by the deed; but the application of it to that part of the lot below high-water mark is denied. There seems to be no reason for the distinction. The land below high-water mark, in commercial towns, is often as valuable as the upland, and the necessity of ways over it as apparent. There is nothing, therefore, in the nature or use of the property, which would tend to limit or restrain the effect of any covenants respecting ways.

There is, however, a reasonable principle, established by the decision in the case of Bullard vs. Dyson, 1 Taunt. 279, which goes to limit the construction of grants, as to ways supposed to be granted. It is that, when at the time of the grant there is a way, in fact, existing, which corresponds with the one mentioned in the deed, and this way does not extend through the whole line of the land granted, the parties shall be supposed to have had reference to such actually-existing way, as a boundary, as far as it extends; and not to have contemplated a way coextensive with the land. We admit this as a sound and useful principle in the construction of deeds and other conveyances.

It does not appear that this principle was advanced, in the trial of the present action; or that, if advanced, it was much relied on. There does not appear, by the report, to have been any evidence in the case which would have justified the application of the principle. Had there been evidence that, at the time of the execution of Russell’s deed, there was a way actually existing southward of the lot granted, which had been laid out to the bluff or high-water mark, and no farther, the defendants’ case would be [ * 417 ] * good, and a new trial ought to be granted. But there was no such evidence.

Judgment on the verdict.  