apportionment has been made, as herein- sage of water in the natural channel of such before stated.)"

A further contention is made that the plaintiff in error has lost all of his property rights, "as against the public health, convenience, and welfare," because of nonuser and failure to repair for more than five years, when the amendment to Revised Statutes, § 4567c, declares that in such case "the milldam and water-rights and privileges belonging the plaintiff's petition, they expressly ading to the same shall be deemed abandoned, and the rights thereto as against the public health, convenience and welfare, under this act shall cease and be barred." Waiving, as we did at the outset, any question as to the legislative power to so declare, and granting the contention to be true as a general proposition, it seems to us that there are at least two answers to it in the present case.

mit the first allegation therein, namely, "that the plaintiff is the owner of the milldam and water rights sought by the proceedings and orders mentioned and referred to in his petition to be destroyed," etc. If he is still the owner of the dam and water rights, he has not lost them. If the property is of any value whatever, whether a mill or a million, he is entitled to compensation under the Constitution. Therefore the amendment of Revised Statutes, § 4567c, in parentheses, passed April 11, 1884 (80 O. L. 135), and itself amended March 23, 1893 (90 O. L. 123), is null and void, because it is in conflict with

This is not a prosecution for nuisance, nor a proceeding to abate a nuisance. It is a proceeding under sections 4567a, 4567b, and 4567c of the Revised Statutes for the improvement of a living stream by the removal of a milldam, alleged to hinder the free pas-article 1, § 19, of the Constitution.

To create an easement of a right of way appurtenant to land conveyed, it is necessary that the way should be open and continuous, and a roadway of considerable width, situated By the second clause of his will, Mr. Pew in the residential and business part of a city, devised to his widow his "homestead esused as appurtenant both to private residences and to business property and wharves, running tate on the southerly side of Union Hill in between well-defined bounds, and actually built said Gloucester as now enclosed." After

other and various devises and bequests, he provided in the sixteenth article of his will that the garden southerly of his dwelling house should be a part of the homestead given to his wife, and added, "And I do hereby devise said garden to my said wife as a part of said homestead." This included the stable and garden lot, to which as well as the dwelling house it is now claimed that the way is appurtenant. [1] The judge at the trial found as a fact, from the other facts found by him, that at the time the will was made and at the date of the testator's death the only reasonable means of access to the stable and garden lots was by the way in question. As this was an inference which could be drawn from those facts, the finding is now conclusive, and we cannot consider whether it is supported by the weight of the evidence or whether a different inference could have been drawn from those facts.

mind reverted to the provision made for his wife, and he seems to have feared that under the language he had used she would not take all that he desired her to have, or else to have resolved to make a more liberal provision for her; and he accordingly expressly devised to her the garden which he had used in connection with the house. In this clause he omitted the limitation which he previously had made, that she was to take the property "as now enclosed." On the contrary, after giving to her in the rest of this clause his household furniture and other similar articles, he added the significant words, "intending that my said wife shall have my said homestead and the personal property owned by me in the dwelling house of the same as it shall be at my decease." Here he plainly used the word "homestead" with a much broader meaning than he applied in the clause last quoted to the word "dwelling house," and showed that he intended her to take the whole estate with the whole beneficial use and enjoyment thereof. But upon the findings of fact it appears that both when he made his will and when he died the possession of this easement was necessary to such full use and enjoyment. We cannot avoid the conclusion that he expected this roadway to be preserved just as he had laid it out, and intended to give to his widow an easement therein for the benefit of her house and land, as a part of his devise to her. Otis v. Smith, 9 Pick. 293; Eliot v. Carter, 12 Pick. 436, 442; Hunt v. Braintree, 12 Metc. 127; Aldrich v. Gaskill, 10 Cush. 155; Melcher v. Chase, 105 Mass. 125; Kimball v. Ellison, 128 Mass. 41; Hammond v. Abbott, 166 Mass. 517, 44 N. E. 620; Dudley v. Milton, 176 Mass. 167, 57 N. E. 355; Millerick v. Plunkett, 187 Mass. 97, 72 N. E. 354. [3] But the court, in determining the rights of parties under a will, seeks first to ascertain the real intention of the testator, and will give effect to that intention unless prevented by some rule of property or fixed principle of law. McCurdy v. McCallum, 186 Mass. 464, 468, 72 N. E. 75; Crapo v. Price, 190 Mass. 317, 320, 76 N. E. 1043; Gray v. Whittemore, 192 Mass. 367, 374, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246; Boston Safe Deposit Co. v. Blanchard, 196 Mass. 35, 38, 81 N. E. 654; Jewett v. Jewett, 200 Mass. 310, 317, 86 N. E. 308; Ware v. Minot, 202 Mass. 512, 516, 88 N. E. 1091.

[2] Upon this finding and the other facts stated in the exceptions and in the decision of the Land Court which is referred to therein, it appears to us that the devise to Mrs. Pew was intended to include the right of way which has been mentioned. This depends upon the intention of the testator, as gathered from the language which he has used, considered in the light of the circumstances as known to him, and with the help of all the evidence available to show what those circumstances were. Leonard v. Leonard, 2 Allen, 543, 545; Bagley v. N. Y., N. H. & H. R. R., 165 Mass. 160, 164, 42 N. E. 571. As the way was laid out by him over his own land and was afterwards used by himself and those with whom he was connected, we must look at its origin and history, at the manner of its use, and the purpose with which it was wrought for travel, so far as that purpose was manifested by its situation, the manner of its construction, and the use which he himself made and allowed others to make of it. These facts have been found with some detail; and from them it was certainly proper, if indeed it was not necessary, to draw the inference that Mr. Pew built and maintained this roadway for the purpose of affording convenient access to all the part of his property abutting upon it, including the garden and stable lot in the rear of his dwelling house, as well as the wharves at the end of the way and the business property, both what he There is no rule of property or principle first owned and what he afterwards acquir- of law to prevent us from carrying out the ed, lying upon the other side of the way. intention of this testator. On the contrary It also could well be found, as manifestly there is much authority for saying that if it was found, that he continued to have this Mr. Pew had in his lifetime made simultaneintention during his lifetime, and to use the ous conveyances of his property in the same way in conformity therewith. It was under language that he used in his will, this roadthese circumstances that he made his will, way, visibly wrought on the surface of the and in the first operating clause thereof ground, would have been subjected to an after the appointment of his executors de- easement of passage in the hands of its vised to his wife his homestead "as now grantee. Scott v. Moore, 98 Va. 668, 37 S. E. enclosed." Then, after having almost com- 342, 81 Am. St. Rep. 749; Phillips v Phillips, pleted his testamentary dispositions, his 48 Pa. 178, 86 Am. Dec. 577; Cannon v. Boyd,

73 Pa. 179; Overdeer v. Updegraff, 69 Pa. | implication, however much stress may be 110; Liquid Carbonic Co. v. Wallace, 219 laid upon its reasonable necessity for the Pa. 457, 68 Atl. 1021, 26 L. R. A. (N. S.) beneficial enjoyment of the estate granted, 327; Brakely v. Sharp, 10 N. J. Eq. 206; yet it is not, in the case of a way for exToothe v. Bryce, 50 N. J. Eq. 590, 25 Atl. ample, strictly the necessity that creates 182; Goodall v. Godfrey, 53 Vt. 219, 38 the way, but the intention of the parties as Am. Rep. 671; Mason v. Horton, 67 Vt. shown by their instruments and the situa266, 31 Atl. 291, 48 Am. St. Rep. 817; Mc- tion and circumstances. with reference to Elroy v. McLeay, 71 Vt. 396, 45 Atl. 898; which those instruments were made. NichDunklee v. Wilton R. R., 24 N. H. 489; ols v. Luce, 24 Pick. 102, 104, 35 Am. Dec. Butterworth v. Crawford, 46 N. Y. 349, 7 302; In re 177th Street, 135 App. Div. 520, Am. Rep. 352; Simmons v. Cloonan, 81 N. 120 N. Y. Supp. 354; Whitney v. Olney, 3 Y. 557; Baker v. Rice, 56 Ohio St. 463, 47 Mason, 280, Fed. Cas. No. 17,595; Pearson N. E. 653; Morrison v. King, 62 Ill. 30; v. Spencer, 1 B. & S. 571; Williams v. James, Cihak v. Klekr, 117 Ill. 643, 7 N. E. 111; L. R. 2 C. P. 577. Irvine v. McCreary, 108 Ky. 495, 56 S. W. [5] It is necessary also for the creation 966, 49 L. R. A. 417; Jones v. Sanders, 138 of such an easement that it should be open Cal. 405, 71 Pac. 506; United States v. Ap- and continuous. And it has been said that pleton, 1 Sumn. 492, 502, Fed. Cas. No. 14,- the easement of a private way, being used 463. See, also, the elaborate note to the case only at more or less frequent intervals and of Rollo v. Nelson, 26 L. R. A. (N. S.) 315, in without any visible mark upon the ground, which this question is exhaustively treated. is noncontinuous and therefore will not pass [4] This court, like some others, never has where other easements, continuous in their gone to the full length of some of the deci- nature and being such as would be readisions above referred to; but the underlyingly apparent, upon inspection, would pas. principle has been recognized and upheld. | Parsons v. Johnson, 68 N. Y. 62, 65, 23 Am. Atkins v. Boardman, 2 Metc. 457, 464, 37 Rep. 149; Bonelli v. Blakemore, 66 Miss. Am. Dec. 100; Leonard v. Leonard, 2 Allen, 136, 5 South. 228, 14 Am. St. Rep. 550; Fet543, 545, 7 Allen, 277, 283; Oliver v. Dick- ters v. Humphreys, 19 N. J. Eq. 471; Young inson, 100 Mass. 114; Adams v. Marshall, v. Pennsylvania R. R., 72 N. J. Law, 94, 138 Mass. 228, 236, 52 Am. Rep. 271; Case 98, 62 Atl. 529; Kelly v. Dunning, 43 N. v. Minot, 158 Mass. 577, 33 N. E. 700, 22 J. Eq. 62, 10 Atl. 276; Whiting v. Gaylord, L. R. A. 536; Pearson v. Spencer, 3 B. & 66 Conn. 337, 34 Atl. 85, 50 Am. St. Rep. S. 761; Brown v. Alabaster, 37 Ch. D. 490; 87; Oliver v. Hook, 47 Md. 301; Francie's Milner's Safe Co. v. Great Northern & City Appeal, 96 Pa. 200; Suffield v. Brown, 4 De Ry. [1907] 1 Ch. 208. It has indeed been G. J. & S. 185; Polden v. Bastard, 1 Q. said that the rule is to be applied with some B. 156. But those decisions do not apply to strictness and only where the easement this case. We have here a roadway of conwhich is sought to be maintained, though siderable width, situated in the residential not expressly granted, is yet necessary to the and business part of a thriving city, used as enjoyment of the estate which has been appurtenant both to private residences and to conveyed. Johnson v. Jordan, 2 Metc. 234, business properties and wharves, running 37 Am. Dec. 85; Carbrey v. Willis, 7 Allen, between 'well-defined bounds, and actually 364, 369, 83 Am. Dec. 688; Randall v. Mc- built or wrought upon the surface of the Laughlin, 10 Allen, 366; Buss v. Dyer, 125 ground. A glance would show that it was Mass. 287, 289; Cummings v. Perry, 169 intended to be used and was in fact used for Mass. 150, 155, 47 N. E. 618, 38 L. R. A. 149; the purposes of a public street so far as McSweeney v. Com., 185 Mass. 371, 374, 70 concerned the accommodation of those who N. E. 429; Warren v. Blake, 54 Me. 276, occupied properties abutting upon it or 89 Am. Dec. 748; Dolliff v. Boston & Maine reached by it. As to Mr. Pew, who had laid R. R., 68 Me. 173; Stevens v. Orr, 69 Me. it out and wrought it for travel, though not 323; Hildreth v. Googins, 91 Me. 227, 39 to the general public, it stood in the place Atl. 550; Whiting v. Gaylord, 66 Conn. 337, of a public street. This case is distinguished 34 Atl. 85, 50 Am. St. Rep. 87; Standiford from most of the decisions just referred to, v. Goudy, 6 W. Va. 364; Pheysey v. Vicary, and comes within the exception stated in 16 M. & W. 484; Worthington v. Simson, some of them. It is directly within the 2 E. & E. 618. But the necessity thus re- language used in Fetters v. Humphreys, 18 quired is not an absolute physical necessity, N. J. Eq. 260, and the decision in Rollo v. but merely such a reasonable necessity for the Nelson, 26 L. R. A. (N. S.) 315. And in use and enjoyment of the dominant estate many of our own decisions already referred as has been found to exist here. Leonard to, rights of way have been held to arise v. Leonard, 7 Allen, 277, 283; Pettingill v. by implication. Porter, 8 Allen, 1, 85 Am. Dec. 671; Oliver v. Pitman, 98 Mass. 50; Schmidt v. Quinn, 136 Mass. 575, 576; O'Rorke v. Smith, 11 R. I. 259, 23 Am. Rep. 440; Kelly v. Dunning, 43 N. J. Eq. 62, 10 Atl. 276. But in

[6] It is necessary that the right should have been in use at the time of the grant of the principal estate. This was held in many of the cases already referred to. See, also, Haverhill Savings Bank v. Griffin, 184 Mass.

ready, seem to have become immaterial because the protases thereof were not found by the judge. We discover no error in their refusal.

Canada, S. C. 245. But the Land Court, refused and have not been dealt with alhas found that this was the case, and that there has been no abandonment of the use; and the occasional opening or closing of gates, with or without a fastening and for a longer or shorter time, raises only a question of fact which has been passed upon at the trial and which we cannot reopen.

The industry of the petitioner's counsel has collected many cases, not all of which have been cited though all have been examined in which claims that easements had been created by implication upon the severance of estates previously held in a single ownership have been overruled. They seem almost without exception to have been decided either on the ground that no intent to create such easements had been manifested, or by reason of the absence of some one or more of the necessary grounds which have been stated. They do not furnish authority for the decision of this case. Exceptions overruled.

(211 Mass. 28)

BERLIN MILLS CO. v. LOWE et al.
(Supreme Judicial Court of Massachusetts.
Suffolk. Jan. 9, 1912.)

CREDITORS' SUITS (§ 8*)-PROPERTY_WHICH
MAY BE REACHED PROPERTY IN CUSTODY
OF THE LAW.

Under the general rule that property in the custody of the law is not subject to attachment, Rev. Laws, c. 159, § 3, cl. 7, au

Nor, for somewhat similar reasons, 'can we say that the right of the respondents to use this way is limited to the two gates by which entrance was had from the way into the garden and stable lot. The apparent and obvious purpose of Mr. Pew in constructing this way, so far as his homestead estate was concerned, was to provide accommodation for that estate, the particular mode of use being left to the convenience and desires of the occupants from time to time. This was the right which he enjoyed, and which he intended to pass to his widow by the broad language of his devise to her. So, too, it cannot be said as matter of law, whatever might have been found at the trial as matter of fact, that the easement can be upheld only for domestic purposes. The right created was appurtenant to the homestead estate, and was not limited to any particular purposes. According to the finding of the Land Court and the ruling made thereon, "both at the time the will was made and at the time of the testator's death, the home-thorizing suits in equity to reach property of stead had in actual use in connection with it and reasonably necessary to its enjoyment access over the way for all purposes for which a private way could ordinarily and properly be used." So far as this is a finding of fact, we cannot review it; as a ruling, it properly followed from the findings which appear to have been made. Salisbury v. Andrews, 19 Pick. 253, 256; Parks v. Bishop, 120 Mass. 340, 21 Am. Rep. 519; Baldwin v. Boston & Maine R. R., 181 Mass. 166, 63 N. E. 428. And see Fox v. Union Sugar Refinery, 109 Mass. 292; Goss v. Calhane, 113 Mass. 423; Boland v. St. John's Schools, 163 Mass. 229, 237, 39 N. E. 1035. [7] Abandonment is of course a question of fact. New England Structural Co. v. Everett Distilling Co., 189 Mass. 145, 75 N. E. 85. There is no such fundamental change of use here as was shown in Great Western Railway v. Talbot [1902] 2 Ch. 759, and similar cases.

It is to be observed that we have here the case of an easement passing by the plain intention of a testator, not solely by necessary implication, and not at all an attempt to create one by an implied reservation contrary to the terms of the grant itself. That would have presented a more difficult question, which need not here be considered.

The petitioner's main contentions have been disposed of by what has been said. Its requests for rulings, so far as they were

a debtor, does not authorize suit to reach the proceeds of insurance claimed by a debtor's wife and deposited in court by the insurer on suit therefor brought by the wife.

[Ed. Note.-For other cases, see Creditors' Suit, Dec. Dig. § 8.*]

Appeal from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Bill by the Berlin Mills Company against William S. Lowe and another. Decree dismissing the bill, and plaintiff appeals. Affirmed.

Mooers & Whiting and Clarence W. Dealtry, for appellant. Louis L. G. de Rochemont and William E. Marvin, for respondents.

SHELDON, J. The money which the plaintiff seeks, under R. L. c. 159, § 3, cl. 7, to reach and apply as the property of William S. Lowe standing in the name of his wife, Margaret H. Lowe, is in the custody of the law. She had brought a suit in the superior court against an insurance company for the amount which had become due under a policy of insurance and to which she alleged that she was entitled. The insurance company admitted its liability, and by leave of court paid into court the amount claimed, under R. L. c. 173, § 37; and a third party, upon notice issued to him, appeared and claimed that the money was due to him, and he was substituted for the defendant in that action. Afterwards he with

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes