Jennison v. Walker
Massachusetts Supreme Judicial Court
Action of tort for breaking and entering the plaintiff’s close in Newton. Answer, a right to enter for the purpose of constructing and maintaining an aqueduct and reservoir for conducting water from a spring thereon to land of the defendant.
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Action of tort for breaking and entering the plaintiff’s close in Newton. Answer, a right to enter for the purpose of constructing and maintaining an aqueduct and reservoir for conducting water from a spring thereon to land of the defendant. At the trial in the court of common pleas, the following facts were proved: In 1800 Phinehas Jennison (under whom the plaintiff claimed) conveyed to Stephen Dana, the owner of land adjoining, (whose title the defendant had,) his heirs and assigns forever, “ the right and privilege of laying an aqueduct from the principal spring and springs, fountain or…
1Opinion of the CourtBigelow, J.
We can see no sufficient reason for disturbing the verdict in this case.
The evidence at the trial not only proved a non-user of the easement of laying and maintaining an aqueduct through the land now owned by the plaintiff by the owners of the dominant tenement for more than thirty years, but also established a possession and use of' the servient estate by the plaintiff and bis grantors during the same period, entirely inconsistent with and adverse to the existence of the easement. The right or easement in question having been acquired by grant and not by use, there might have been difficulty…
2Cases cited2 opinions
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