
    PATRICK T. MAGUIRE v. NATHANIEL M. SAFFORD.
    Norfolk,
    June, 1901.
    
      Way — By Necessity — In Favor of Bieversion, .Notwithstanding Grant to Estate m'Dower.
    
   In this case the petitioner’s land is divided into two tracts, separated by the estate of the respondent. All three tracts came originally from an estate belonging to one James Adams. In the settlement of the Adams estate the two tracts now belonging to the petitioner were set off to the widow as dower. The tract now of the respondent was sold by the administrator of the Adams estate for the payment of debts. A well defined way originally existed from the inner tract now belonging to the petitioner through the respondent’s land to the homestead and thence to the street. In the set-off of the widow’s dower there was given by the commissioners privileges of passing and re-passing through said other lands and tanyard (now estate of the respondent), to and from said two acre lot to cultivate and improve same.” The land now of the respondent was for many years leased to the owner of the reversion.

The petitioner claims a right over said way either by grant, prescription or necessity. The respondent denies him any right of way whatever.

As to the right claimed by grant, the easement assigned to the widow in her set-off of dower ceased with her dower estate. Hoffman v. Savage, 15 Mass. 130.

No right of way can have been acquired by prescription, because the use began in grant, and was mainly continued ,under a lease-hold right until within the statutory period.

R. W. Light for Petitioner.

Z. S. Arnold for Respondent.

As to a way by necessity, it is argued that tbe necessity must exist at tbe time of tbe original separation of tbe tracts, and that if there was then a way out for tbe alleged dominant estate, no grant will be presumed from necessity. But tbe time of tbe real separation of these estates was tbe time of tbe administrator’s sale. Tbe set-off in dower was not a separation of tbe land or of tbe fee in the land, but merely of tbe use of tbe land for a limited period. Notwithstanding tbe assignment of a right of way to tbe dowager in her set-off of dower, or rather regardless of such assignment, a right of way by necessity arose upon tbe administrator’s sale for tbe payment of debts of that portion of tbe estate which bad not been set off in dower, over tbe tract so sold, in favor of tbe two acre dower tract now belonging to tbe petitioner. Symmes v. Drew, 21 Pick. 278. Viall v. Carpenter, 14 Gray 126. This is not the ease of an administrator attempting to impose an easement upon land of tbe intestate other than that which be was then selling as in Baker v. Willard, 171 Mass. 220, 226.

Tbe respondent further contends that if a right of way by necessity existed, it determined upon tbe acquirement by the owner of tbe dominant estate of an undivided interest in another estate adjoining bis inner tract and lying between that and a more convenient public street. It does not seem to me that even if tbe petitioner by this last purchase has acquired a right of way as against bis co-owners over tbe tract in which be bolds an undivided interest, (which is, to say tbe least, doubtful) that be can increase that burden by a user in favor of tbe inner lot, which be owns individually. Zell v. Universalist Society, 119 Pa. St. 390. Greene v. Canny, 137 Mass. 64.

(Note, and see Hazen v. Mathews, 184 Mass. 388, 393.)

Decree for petitioner of right of way by necessity.  