
    Abner Alden versus Levi Murdock.
    One conveys land, reserving a highway across the same to be kept open for ever; the heir of the grantee conveys parcels thereof bounded on the highway; and, in an action for the land covered by the way, by. the last grantor against one of his grantees, to which the tenant pleaded mil disseizin, the demandant recovered ; but it was said, that, if the tenant had pleaded a special non-tenure in abatement, claiming only a right of passage over the land, he might have prevailed.]
    t See Sta.ckpole vs. Healy, 16 Mass. Rep. 33.
    Entry sur disseizin. The demandant counts upon his own seizin within thirty years, and upon a disseizin by the tenant. Trial upon the general issue, before the Chief Justice, at an adjourned session of the Court, holden at Plymouth in April, 1815. A verdict was taken for the tenant, subject to the opinion of the whole Court upon the following facts.
    The land demanded was formerly used as a way, which has been lately discontinued ; and the demandant’s title was proved, provided, under the circumstances of the case, the land over which the way passed reverted to him upon the discontinuance of the way.
    
      In the year 1729, Joseph Warren conveyed to John Alden, the ancestor of the demandant, a certain forty-acre lot of land in the town of Middleborough, with a memorandum in the deed, in the following words ; “I, the said Joseph Warren, do reserve the highway to be kept open, which was laid out across or through the above-mentioned lot, being that lot part of which I sold as aforesaid to Barnabas Eaton ; said way to be kept open for ever.”
    In 1731, the said John Alden made his last will, and, among other things, devised the aforesaid lot of land to his son, Joseph Alden, father of the demandant; and, the said Joseph being dead, the demandant., as his heir, became entitled to the said lot. He has since conveyed all his interest therein to divers persons, bounding them severally upon * the road or way, which was then fenced out and passed over the land demanded in this action ; the demandant having no claim or interest in any part of said lot conveyed as aforesaid by said Warren, except the strip demanded, over which the road aforesaid formerly passed.
    The tenant is the proprietor, derivatively, from the demandant, of a part of the said lot, lying to the eastward of the said road, and bounded thereon.
    A copy of a return of the laying out of a way across the said lot by the selectmen of Middleborough, in 1709, was read to the jury ; and evidence was offered by the tenant, to prove, that the way over the land demanded was tbe way described in said return ; and evidence was offered by the demandant, to prove, that another way, recently laid out, but formerly used for travelling, was the way described in said return.
    In order to save the question for the whole Court, the jury were instructed, if the evidence satisfied them that the way over tbe land demanded was the way described in said return, that they ought to consider it to be the same which was reserved in the deed of Joseph Warren ; so that nothing in the land demanded passed by said deed to the ancestor of the demandant ; and, in that case, their verdict should be for the tenant. But, if they were satisfied that this road was not the one described in the said return, the demandant ought to recover.
    The verdict being for the tenant, a new trial was moved for by the demandant, for misdirection by the judge.
    The cause was argued at the last July term, at Plymouth, by Woods and Baylies, for the demandant, and Sproat and Eddy, for the tenant.
    
      For the demandant,
    
    it was contended, that the soil and freehold of the land demanded passed by Warren’s deed to the demandant’s ancestor, the memorandum in that deed relating only to the use of the road, and being intended to protect the grantor from an action on his covenant against incumbrances, of which this right of the public to pass *over the land granted might be considered as a breach. By the conveyances made by the demandant of parcels of the original lot, all bounded upon or by the wayj none of the land covered by the way passed. 
    
    
      For the tenant,
    
    it was said, that, if any one but himself was owner of the fee in the land demanded, it must be the heirs of Warren, the original grantor. The reservation is plain and needs no construction. It reserved the soil to the grantor and his heirs.
    
      
      
        Perley vs. Chandler, 6 Mass. Rep. 441.—Storer vs. Freeman, Ibid. 435.—1 Shep, Touch. 77.
    
   The cause stood continued to this term for advisement; and now the opinion of the Court was delivered by

Parker, C. J.

It must be taken for granted^ from the facts reported in this case, that Joseph Warren, the original owner of the lot of land over which the road passed, was the proprietor of the whole lot, including the way which is supposed then to have existed ; and that this way was only an easement, acquired by the town or the public, either by the grant of Warren, or his predecessors, or by prescription, or by a lawful appropriation of it under the then existing provisions for the establishment of highways. Warren, then, m whichever way the easement was acquired, would be the lawful proprietor of the soil over which the way ran, with a right to make any disposition or use of it not inconsistent with the public right of passing over it. The memorandum in his deed to the ancestor of the demandant is not an exception from the grant, of any part of the land included within the boundary lines ; and would amount only to a declaration, that the way was to continue, notwithstanding the grant, and might, also, as suggested at the bar, have been intended to prevent the grantee from charging, as a breach of covenant, the existence of this easement, which otherwise might be considered an incumbrance upon the title. His deed, therefore, passed the whole interest in the land to the ancestor of the demandant, subject to the easement recognized in the memorandum. By the devise of John Alden, the grantee of Warren, the land came, subject to the same * easement, to Joseph Alden, the demandant’s father, who being dead and leaving the demandant his only heir, the title must be considered as regularly deduced.

The demandant, owning the land in the same manner as Warren, John Alden, and Joseph Alden did, must recover ; unless he has parted with it by contract, or lost his remedy by lapse of time.

He has conveyed to sundry persons divers parts of the forty-acre lot, bounding all the different parcels upon the road ; so that his grantees can claim no title to the land over which the road runs ; and, according to the principles of the common law, upon the discontinuance of the road a right to the complete occupancy of the soil would revert to the demandant ; the fee being in him, and the easement taken away by lawful authority. This must have been the result, had the way been only a public way, and had not its continuance been provided for in the early conveyance of Warren to John Alden. For the seizin must be considered as continuing with the seizin of the land adjoining upon the road.

In this action the soil itself is demanded, and the right to it is defended by the tenant by his plea of nwl disseizin In an early stage of the action, a different mode of pleading might have saved the costs of the suit to the tenant. For, as the demandant’s title is incumbered with an easement, and as the demandant himself recognized the existence of the way when he conveyed to the tenant, bounding him and his other grantees upon a road, had the tenant pleaded a special non-tenure in abatement, claiming only a right of passage over the land, he probably would have prevailed.

The result of the present pleadings will be the same as to the title, although not as to the costs. For the tenant has made full defence to the action, whereby he has admitted the possession of the soil to be in him ; which possession he cannot maintain, according to the principles before stated.

* The demandant, therefore, must prevail in the action ; but he will hold the land, the title of which is in him, subject to the easement, if it shall appear, upon a future inquiry, that such easement lawfully exists.

The mere discontinuance of the way by the Court will not operate to extinguish the rights of the grantees of the demandant to claim and use the land demanded, as a way ; and they can maintain this right by an action, if they shall be interrupted in the use of it.

New trial granted. 
      
       [See 21 Pick. 292, (297). — Ed.]
     