
    Joseph Farnum versus Abiel Platt.
    The owner of land having leased a marble quarry thereon for ten years, conveyed - the land “ reserving the use of the quarry until the expiration of the lease,” The lease was cancelled within the ten years with the consent of the parties. Held, that the reservation was not thereby extinguished, but that it would continue in force till the end of the ten years.
    Where one has a right of way over another’s land, and the way is not defined, if the owner of the land stops up the way which is in use, the other party will be justified in going over another part of the land.
    Trespass quare clausum fregit for breaking and entering several closes of the plaintiff, and carrying away marble from a quarry in one of the closes. The general issue was pleaded ; also several pleas in bar, in which a right to enter upon the closes and do the several acts complained of, is averred and claimed under title derived from a sale on execution against one Eli Garlick.
    At the trial, before Parker C-. J., the following evidence was produced. On June 24, 1820, Garlick, who was then owner of the closes described in the writ, executed an agreement with William Middlebrook, David Dell, and Stephen Mead and sons, by which they were to have the use of the quarry for ten' years, with the right of way through the closes for the purpose of going to the quarry and carrying away the marble ; and the parties entered into and occupied the closes pursuant to the agreement. This agreement was not recorded. On September 14, 1822, Garlick, for a valuable consideration, conveyed the same closes to Farnum, the plaintiff, by a deed which contains the following clause; — “reserving also the use of the quarry on said Burhans lot until the expiration of the lease I have heretofore made to Stephen Mead and others,” (meaning the agreement before referred to.) This agreement or lease was cancelled on October 5, 1822, by consent of the parties to it, and the names and seals torn off
    
      Garlick continued to use the quarry occasionally after the cancelling of the lease, under the reservation in the deed ; and on November 26, 1826, his supposed right in the same was taken on execution and sold in due form to the defendant; and the acts complained of were the passing through the closes to the quarry mentioned in the reservation, for the purpose of taking marble therefrom, and repassing through the same with loads of the marble to a mill where it was to be wrought.
    It was insisted by the plaintiff’s counsel, that even if the defendant had any right to enter on and pass over the land and take stone from the quarry, yet that he pursued a course different from the route which had been usual. But there was evidence that the plaintiff had fenced out the old road, and that the route taken was that which would do the least injury to the plaintiff’s land.
    A verdict was taken for the plaintiff; which was to be set aside, and the plaintiff nonsuited, if a right or interest remained in Garlick at the time of the sale on execution, which passed to the defendant; otherwise judgment was to be rendered -on the verdict.
    
      Hubbard and Hubbell, for the plaintiff.
    The reservation in Garlick’s deed was only till the “ expiration of the lease.’' When, therefore, the lease terminated by the agreement of the parties, though before the end of the ten years, all Garlick’s right under the reservation ceased. Co. Lit. 47. The reservation was intended for the benefit, not of Garlick, but of his lessees. It was an exception from the grant in the deed, and when the estate of the lessees was extinguished, it was for the benefit of Farnum.
    The cancelling could not operate as an assignment or surrender of the lease to Garlick. 4 Dane’s Abr. 135.
    The lease was void because it was not recorded. 4 Dane’s Abr. 126; Chapman v. Gray, 15 Mass. R. 439; Doe v. Butcher, 1 Doug. 53.
    The defendant was a trespasser in going out of the usual way ; if that was stopped up by the plaintiff, the defendant’s remedy was by action. Comstock v. Van Deusen, 5 Pick. 163.
    
      C. Jl. Dewey and Briggs, for the defendant,
    as to the effect of the reservation in the deed, cited Bridge v. Wellington, 1 Mass. R. 219; Worthington v. Hylyer, 4 Mass. R. 205 , Adams v. Frothingham, 3 Mass. R. 352. As to the effect ol cancelling the lease, they contended that it did not destroy the estate created by it, and cited Matthewson’s case, 5 Coke, 23; Harrison v. Owen, 1 Atk. 520; Glib. Ev. 109; Bolton v. Carlisle, 2 H. Bl. 259; St. 1783, c. 37; Roe v. York, 6 East, 86; Cruise, Deed, tit. 32, c. 9; Touchstone, 74; Co. Lit. 225 b; Hatch v. Hatch, 9 Mass. R. 312; Marshall v. Fisk, 6 Mass. R. 24; 4 Bane, 110; Commonwealth v. Dudley, 10 Mass. R. 403.
    
      
      Sept. 9th,
    
      
      Sept. 12th.
   Parker C. J.

delivered the opinion of the Court. The principal question in this case is upon the construction of a clause in the deed of Garlick to the plaintiff, which is in terms a reservation of the right to use a stone-quarry upon one of the lots described in the deed.

Before the execution of this deed, Garlick, then owner of the land, had leased the quarry, with the right of ingress and egress, to Middlebrook and others, for ten years then unexpired. The object of the reservation was to secure the rights of the lessees during the continuance of the lease ; and the presumption of law is, that whatever diminution of value this occasioned to the title conveyed to the plaintiff, was accounted for in the consideration paid.

This lease, or agreement which had the effect of a lease, was, by consent of all the parties to it, cancelled after the execution and delivery of the deed to Farnum, and he contends that, on such cancellation, he held the land under the deed, free from the right secured by the reservation. We do not think this is the true construction of the reservation ; but that its effect was to exclude from the operation of the grant, the use of the quarry by Farnum, during the time provided in the agreement for its continuance. This is the most natural construction, and such as was intended by the parties at the time. The words “until the expiration of the lease” mean, until it shall expire according to the terms of it, and not the termination of it by a new agreement between the parties to it. And the reservation enures to the use of the lessor as well as the lessee ; for it saves the quarry from the operation of the deed, for the time, as much as it would, if the reservation had been for the unexpired time, without any mention of the lease. Therefore Garlick, or those lawfully holding under him, would not be liable in trespass, for taking stones from the quarry.

And as the way, used for access to the quarry, was not limited or defined, the shutting up the way commonly used gave the right to pass to and from, in any course least prejudicial to the owner of the land. This, according to the verdict oi the jury, was done by the defendant in this case.

Plaintiff nonsuit.  