Miller v. Miller

21 Mass. 244

Opinion

Per Curiam.

The plea in bar is bad, in averring a seisin of land for the purpose of enjoying an easement. The effect of this, if allowed, would be to shut out the plaintiffs from any use of the land over which the way runs, although entirely consistent with the tenant’s enjoyment of the right of way. This cannot be, for the seisin of the land remains in the owner, notwithstanding the right of way in another.

The tenant might have so pleaded as to save his way and the costs of the suit, by disclaiming all title to and possession of the land, except his incorporeal right of using it for a way.¹

1 If in a writ of entry the tenant pleads the general issue, whereby he claims the fee, but fails to support his plea, he is not thereby estopped from setting up a claim to an easement in the land. Tyler v. Hammond, 11 Pick, 220.