
    Elizabeth Grant versus Philip Chase and Another
    What easements will pass by a grant of land, “with all the privileges and appurtenances thereto belonging.” [The conveyance of a specific piece of ground carved out of a larger piece held by the grantor and described by metes and bounds, carries nothing which is not included within the boundaries; and a right of way through the premises of the grantor does not pass under those words.—Ed.]
    This was an action of trespass quart clausum, fregit. The defendants justified under a right of way over the plaintiff’s land, to a pump and an outhouse standing thereon, as appurtenant to their own messuage, which adjoins to the plaintiff’s land. In one plea it is stated, that one Abner Chase was seised of the messuage now owned by the defendants, and had the right of way, &c., as appurenant to it; and that he afterwards conveyed the said premises, with the appurtenances, to the defendants, whereby they became seised, &c. And in another plea they allege the right of way by prescription in themselves, and all those whose estate they have in the said messuage. The plaintiff traversed the right of way; and the cause was tried on the issues, before Parker, C. J., April term, 1820, at Ipswich.
    
    On the trial it appeared that one Abijah Estes, before the year 1778, was seised in fee of the messuage and land now [ * 444 ] owned by the plaintiff, which fronts on Essex street * in Salem. On the 7th of January, 1778, he purchased the messuage now owned by the defendants, which lies in the rear of the other, and fronts on another street. This latter was called “ the sugar-house estate.” The said Estes continued to occupy the house in Essex street until his death, which was in the spring of 1792 and leased the other house, from time to time, to different tenants. During this time there was no division fence between the two lots. There was only one well, and one outhouse for both messuages; and they were on the land now owned by the plaintiff, and were used in common by Estes, and by his tenants who occupied the other estate.
    The said Estes made his last will in 1783, and therein, among other things, devised to his daughter Mary Blaney, for her life, the sugar-house estate, “ with all its appurtenances, as it is now let or hired; ” and the remainder, after her decease, to his three other children. The other estate he devised to the said M. Blaney, and his two other daughters in common, “ so long as they shall continue to live together as one family;—but in case they shall choose to live separately,” he gave the north end of the house to his two last-mentioned daughters for life, “ with the common use of the well, yard, outhouses, east entry and kitchen ; which shall be in common to their use, and my daughter Blaney’s use.” He then devised to his daughter Blaney, in fee, the south end of the same house; and all the residue of his estate, after her death, to his son and the said two other daughters. He appointed the said M. Blaney executrix of his will.
    After his death it appeared that his estate was insolvent; and the said M. Blaney, as executrix, having obtained an order of court for the sale of his real estate for the payment of his debts, did, on the 14th of December, 1792, sell and convey the said sugar-house estate to one Thomas Mason. In this deed the land is described by metes and bounds, and is conveyed “ with all the privileges and appurtenances thereto belonging.” The- easements in [ * 445 ] question, * are not particularly mentioned nor referred to in this deed ; and there is no other expression relating to appurtenances, excepting the general clause before mentioned.
    
      The said Thomas Mason, by his deed, dated the 5th of September, 1795, conveyed the same land to one Abigail Mason, and therein granted the privilege of drawing water from the well, and the privilege of an outhouse, with the right of passing to and from them, &c. The defendants hold under this title, which has come to them by three intermediate conveyances; in all which the privilege in the well, &c., is expressly granted, as in the deed of T. Mason to A. Mason.
    
    On the 14th of December, 1792, the said two other daughters and the son of said Estes, the testator, conveyed all their interest in the estate on Essex street to the said Mary Blaney; and the plaintiff now holds that estate under her by sundry mesne conveyances. None of these last-mentioned deeds and conveyances contain any exception of the said privilege in the well, &c., nor any mention of it, or of the right of way.
    There was evidence on the trial, that the well had been filled up for many years, and that the outhouse had been removed to another part of the land. The cause, however, on the argument before the whole Court, turned principally on the effect and operation of the said M. Blaney’s deed to T. Mason. The jury were instructed, at the trial, that the privilege and way passed by that deed ; and they found a verdict for the defendants. The plaintiff moved for a new trial.
    
      Cummings, for the plaintiff.
    
      Prince, for the defendants.
   Jackson, J.,

delivered the opinion of the Court.

If Mary Blaney had held the sugar-house estate under the will, she would also have taken all the easements, used and occupied with it by the tenants of the testator. According to the facts reported, these would have included the way and other privileges in question. This reference in a will, or * other [ * 446 ] conveyance, to the actual condition of the property, to ascertain what is granted, is not the most safe and convenient mode of describing it; but when the thing referred to can be rendered certain, the grant is thereby made certain. 10 Co. 63, Whistler’s case. It is true, also, if M. Blaney had held these easements as appurtenant to the estate, they would have passed by her deed to T. Mason, by the expression of “ all the privileges and appurtenances thereto belonging.” But it appears that M. Blaney did not hold this land under the will. The estate being insolvent, the rights of the creditors of the testator superseded those of the devisee. She did not sell as devisee, but as executrix under an order of the Court. As devisee, she had only a life estate; but she conveyed an estate in fee simple. She must be considered as having waived the devise to herself, and sold under the power given to her, as executrix, by the order of the Court; as, otherwise, her conveyance would have produced a forfeiture of her particular estate, and T. Mason could have held nothing under it, against those in remainder.

Neither does the devise of the other estate confirm those supposed easements to the devisee of the sugar-house estate. The use of the well, yard, &c., is given to the two other daughters in common with M. Blaney, only in case they should choose to live separately from her. If they should all three continue to live together, this clause in the will, would not go into operation. It could not, therefore, have been intended as a recognition of the privileges or easements belonging to the other estate. And even if these easements, in favor of the sugar-house estate, had been expressly excepted in the other devise, they would have endured only as long as that first estate should endure, viz. for the life of M. Blaney; and that estate being now .determined, the easements would be extinct.

The title of the defendants is, therefore, to be considered in the same light as if Estes had died intestate. The executrix might have conveyed the land with all the privileges [ * 447 ] * mentioned in the devise to her; or by other apt words have referred to the will for a description of what she intended to convey. It would then have come within the rule before stated; and the description, although uncertain in itself, would be rendered certain by reference to the will. But her conveyance to T. Mason is made without any reference to the will, express, or implied, and must be construed in the same manner, as if no such will had existed.

The deed, considered in this view, cannot be construed more stwongly in favor of the grantee, than if it had been made by Estes himself. In that case, the easements in question would not have passed, unless they were either parcel of the premises that were expressly conveyed, or necessarily annexed and appendant to them. This is not like a conveyance of a manor, a messuage, or farm, &c. known by a certain name, and including sundry distinct tenements, buildings, or fields, which have been used with the principal thing, and reputed parcel of it; and which would pass under the general name of the manor, messuage, &c. This is a conveyance of a specific piece of land, carved out of a larger piece held by the grantor, and described by metes and bounds. In such a case, nothing could pass as parcel of the granted premises, but what is included within the boundaries expressed in the deed ; at least, none of the remaining part held by the grantor Neither could these easements pass as appurtenant, under the general clause relating to privileges and appurtenances. It does not appear that the way and other privileges were ever used or claimed before Estes became seised of both the houses. If they had existed before that time, the right would have been extinguished by the unity of seisin in Estes. The general rule on this subject has not been questioned. In addition to the ancient cases collected in Vin. Abr. extinguishment C., may be cited the case of Whalley vs. Thompson Al., 1 Bos Pul. 371, which very strongly resembles the present. The exceptions are of things appendant * to the granted [ * 448 ] premises, and which are naturally or necessarily annexed to them. Such is the case of a natural water-course, and, perhaps, of an artificial conduit, running to the granted premises through other land of the grantor. The case of lights, also, in a house or other building, come within the same exception, when the windows open upon other land of the grantor of the house; as in Story vs. Odin, 12 Mass. Rep. 157. A way, when it is strictly a way of necessity, has been sometimes considered as falling under the same rule, and as passing to the grantee, or even being reserved to the grantor, without any express words of grant or reservation. In this case, however, it seems more correct to say that the way is newly created by the implied grant or reservation. But, in the case at bar, the way and other privileges claimed by the defendants, were not annexed to the sugar-house estate by any natural or legal necessity. It was a matter of ease and convenience only; which, as it must have arisen originally from the consent or agreement of the parties concerned, might be destroyed or extinguished in like manner. It cannot be distinguished from the common case of ways and easements, which are extinguished by unity of possession, and which cannot be claimed afterwards without a new grant.

The Court is, therefore, of opinion that the privilege and way in question did not pass by the terms of the deed of M. Blaney. If there has been such a user, as will establish the right claimed by the defendants, or estop the plaintiff from denying it, they will have opportunity to show that fact on the new trial.

New trial gi anted.  