Hollenbeck v. McDonald

112 Mass. 247

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1873
• Status: Published

Opinion

Gray, C. J.

The terms of the lease from Fox to Tyler clearly included a right in the aqueduct through which the water was taken, as well as in the water itself.

By the common law, a lease of real estate for nine hundred and ninety-nine years, as for any less> time, creates but a chattel interest, requires no words of limitation to heirs and assigns, and need not run to executors and administrators. Shep. Touchst. 76. Gay, petitioner, 5 Mass. 419. Chapman v. Gray, 15 Mass. 439, 445. Our statutes providing that so long as fifty years of the term of a lease for one hundred years or more remain unexpired, it shall be regarded for many purposes as an estate in fee simple, and the lessee as a freeholder, do not affect the form of deed by which it may be conveyed. Gen. Sts. c. 90, §§ 20, 21. The lease from Fox to Tyler therefore conveyed the rights de scribed for the full term named therein.

The lease from Tyler to Bristol conveyed an undivided half of the same rights to him, and was not made less effectual by the addition of the words “ heirs and assigns.” Shep. Touchst. 76. Gen. Sts. e. 89, § 9.

Bristol owning the lot to which the aqueduct had been laid for the purpose of taking the water, and the. easement in the water and the aqueduct being manifestly necessary for the reasonable enjoyment of that lot, the subsequent conveyances of his title in the lot passed his right in the water and aqueduct without any express mention thereof. Pettingill v. Porter, 8 Allen, 1. Oliver v. Dickinson, 100 Mass. 114.

It follows that the plaintiff took his title subject to that right, and there must be Judgment for the defendant.