
    Daniel Kent versus Phineas Waite.
    An easement appurtenant to land will pass by a deed of the land, without an express grant of the easement or of the privileges and appurtenances.
    A right of way by prescription may be acquired in forty years.
    Evidence of the adverse use of way for a sufficient length of time, by the owners of a farm and any other persons having occasion to use it, will sustain the allegation of a prescriptive right in the owners of the farm, notwithstanding it shows a right by custom in other persons.
    Case for obstructing a way leading from a wood-lot belonging to the plaintiff, over the defendant’s pasture, to Flip lane in Leicester. The three first counts in the declaration described the way as appurtenant to the wood-lot; the fourth and fifth alleged a prescriptive right to the way in the plaintiff and all those who were owners of the farm on which he lived.
    At the trial, before Parker C. J., it appeared, that on April 20th, 1777, one Sylvester, who originally was the owner of both the wood-lot and the pasture, conveyed the pasture to Liver-more and Jackson, “ reserving to himself and to his heirs and assigns a drift-way across the above sold land.” After several intermediate conveyances,' with the same reservation to Sylvester, the land was granted to the defendant without any express reservation.
    On July 1st, 1779, Sylvester conveyed one half of the woodlot to one Stone with all the privileges and appurtenances belonging to it. On August 3d, 1793, Sylvester conveyed the other half of the wood-lot to one Thacher, together with the right of way which he had reserved in the deed to Livermore and Jackson. By several conveyances this same half passed to Stone, but in none of these deeds is any mention made of the right of way ; nor is there any grant of the privileges and appurtenances. Stone, who had thus become the owner of the whole of the wood-lot, on March 6th, 1807, conveyed it to Earle, with all the privileges and appurtenances. In 1811, Earle’s administrator conveyed it to Denny, without any notice of the right of way, and after an intermediate conveyance it was conveyed to the plaintiff, in 1812, with all the privileges and appurtenances.
    The defendant contended that the original right of way, as reserved by Sylvester, was extinguished, because in some of the conveyances of the wood-lot there was no mention of the right of way and no grant of privileges and appurtenances.
    It was proved that the plaintiff had, ever since the purchase of the wood-lot, used this way for the purpose of carting wood to the village for sale, and for other purposes, and that Stone, his grantor, had used it in the same way. The way had been kept in repair by the plaintiff, the neighbours who used it assisting. No objection to the use of the way by the owners of the wood-lot, was ever made by the owners of the pasture before the pasture was purchased by the defendant, which was in 1823.
    In regard to the prescriptive title, it was proved that the plaintiff’s ancestors, owners of the farm which he now owned, to which the wood-lot adjoins, used the way for passing and repassing on foot, with horses, teams, &c. for more than fifty years past and up to sixty; but it also appeared, that it was passed in the same manner by any other persons who had occasion to go that way. It also appeared, that the plaintiff might pass from the wood-lot through his own farm, to the place where the way in question comes out in Flip lane, but by a circuitous route, the difference in distance being a mile and a half.
    The defendant contended that the use of the way, as proved, did not support the counts on a right of way by prescription, and that on none of the counts could the plaintiff recover.
    The facts above stated being clearly proved, it was agreed that a nonsuit or default should be entered, according as the Court should determine the law of the case.
    
      Oct. 9th.
    
    
      Newton and Flint, for the plaintiff,
    contended that the right of way passed as appurtenant to the wood-lot, without being expressly mentioned in the deeds and without the clause cum pertinentiis. Co. Lit. 307 a, 121 b ; Whistler’s case, 10 Co. 64 a ; 2 Bl. Com. 22 ; Jackson v. Hathaway, 15 Johns. R. 447 ; White v. Crawford, 10 Mass. R. 183 ; Story v. Odin, 12 Mass. R. 157.
    In regard to the plaintiff’s claim by prescription, they cited Coolidge v. Larned, 8 Pick. 504 ; Odiorne v. Wade, 5 Pick. 421 ; and as to the difference between prescription and custom, Grimstead v. Marlowe, 4 T. R. 717 ; Bean v. Bloom, 2 W. Bl. 926 ; Gateward's case, 6 Co. 59 b ; 3 Dane’s Abr. 247, c. 79, art. 3, § 2.
    
      Washburn, for the defendant.
    There is a variance between the evidence and the declaration. The evidence shows a custom, and the plaintiff should have prescribed for a right of way by virtue of the custom, and not as the owner of a particular parcel of land. 3 Dane’s Abr. 246, 247, c. 79, art. 3 ; 3 Cruise’s Dig. tit. 31, Prescription, c. 1, § 7, 21 ; 2 Bl. Com. 263 ; 3 Salk. 279 ; 4 Co. 32 ; Co. Lit. 113 b ; 1 Dane’s Abr. 528, c. 26, art. 5 ; Bean v. Bloom, 2 W. Bl. 926.
    The right of way did not pass by the deed to Denny in 181.1, for want of the clause cum pertinentiis, as it was not necessary to the enjoyment of the land granted, and the insertion of this clause in subsequent deeds is of no avail. Gayetty v. Bethune, 14 Mass. R. 49 ; Whalley v. Thompson, 1 Bos. & Pul. 371 ; Grant v. Chase, 17 Mass. R. 443; Manning v. Smith, 6 Connect. R. 291 ; Beaudely v. Brook, Cro. Jac. 190 ; Doane v. Broad Street Association, 6 Mass. R. 334 ; 4 Cruise’s Dig. tit. 32, Deeds, c. 3, § 27 ; Shep. Touch. 92.
    
      Oct. 13 th.
    
   Wilde J.

delivered the opinion of the Court. The plaintiff relies on two titles to the right of way claimed in the writ, the one by grant, the other by prescription ; either of which, as appe ring in evidence, is sufficient to maintain the action.

In 1777, one Peter Sylvester was the owner of the lot of land on which the right of way is claimed ; and also of the wood-lot now owned by the plaintiff. In the deed of Sylvester to Livermore and Jackson, under which the defendant claims by divers' mesne conveyances, there is a reservation made of a right of way across the land granted to the wood-lot, in favor of Sylvester, his heirs and assigns. The right of way is thus made appurtenant to the wood-lot, and has been so claimed and used by the tenants thereof ever since.

It is admitted that the plaintiff has a valid title to the woodlot, but it is denied that he has any title to the right of way ; because in some of his title deeds there is no express grant of the right of way, nor of the appurtenances of the wood-lot. But this omission is not material, for the principle seems to be well settled, that a right of way, or other easement, appurtenant to land, will pass by a grant of the land, without any mention being made of the easement or the appurtenances. This principle is laid down by Lord Coke, and is supported by a strong current of authorities. There is a dictum to the contrary in the case of Higgins v. Grant, Cro. Eliz. 18, but it is wholly unsupported.

It has been argued, that a right of way will not pass as incident to a grant, unless the way is strictly necessary for the enjoyment of the thing granted. This is true in regard to ways of necessity. But the right of way claimed by the plaintiff has no such origin, and the cases cited in support of this position are not applicable. The plaintiff’s right is derived from an express reservation ; the easement reserved was made for the accommodation of the wood-lot, and thus became appurtenant to it; and as it belonged to this lot, so it passed with it without being named. This title, therefore, is well maintained, and fully supports the three first counts.

The two last counts were founded on a prescriptive title, and that also is well maintained by the evidence. It was proved that the plaintiff and his ancestors, owners of the farm adjoining the wood-lot, had used and enjoyed, without interruption, a way over the defendant’s lot, for upwards of forty years : a sufficient length of time to establish a title by prescription; [as was again decided in the case of Melvin v. Whiting, post, 295.]

It has been argued, that the evidence proved a custom, and not a prescriptive right; but we think it proved both a prescriptive title in the plaintiff, and a right by custom in others ; and their right$ are not inconsistent. Different persons may. have a right of way over the same place by different titles, one by grant, another by prescription, and a third by custom ; and each must plead his own title, and if he proves it, it is sufficient, although he may also prove a. title in another, provided the titles are distinct and not inconsistent. There seems, therefore, to be no valid objection to either of these titles, and the defendant, according to agreement, is to be defaulted. 
      
       See United States v. Appleton, 1 Sumner, 492 ; 3 Kent’s Comm. (3d ed. 420; Hazard v. Robinson, 3 Mason, 272; Plant v. James, 5 Barn, & Adolph 791.
     
      
       See Reed v. Northfield, 13 Pick. 94; Revised Stat. c. 119; Valentine v. Boston, 22 Pick. 75; Hinckley v. Hastings, 2 Pick. (2d ed.) 164,165, note.
     