Brigham v. Smith

70 Mass. 297

Opinion

Thomas, J.

If A conveys land to B, to which B can have access only by passing over other land of A, a way of necessity passes by the grant. If A conveys land to B, leaving other-land of A, to which he can have access only by passing over the land granted, a way of necessity is reserved in the grant. These points are settled, as well in the cases cited for the plaintiff', as those cited for the defendant.

Is the rule affected by the fact that the grantor conveyed by deed of warranty ? We think not. If the way were expressly reserved in the deed, the covenants must apply to the premises granted, that is, an estate with a right of way reserved or carved out of the fee. In the present case, the law does for the parties the same thing, and the covenants apply to an estate with this way of necessity reserved.

Exceptions sustained.