Reserved or Excepted
Prior to 1912 an easement that was reserved without using the words "heirs and assigns" might be deemed to be personal, or more accurately an easement for the life of the grantor only. (After 1912 the words "heirs and assigns" became superfluous with the enactment of G.L.c. 184, §13.) But the omission of such words would not necessarily give this result, if the easement was deemed not to be a "reservation," but rather an "exception." This fine distinction was discussed in McDermott v. Dodd, 326 Mass. 54 92 N.E.2d 875 (1950). In McDermott two deeds were given prior to 1912 which stated that the grantors "reserved" certain easements, but the words "heirs and assigns" were not included in the language. In an action brought to enforce the easements the court, although holding that there was no appurtenant easements created (because it was shown that no dominant estates were serviced thereby), said:
It will be seen that no words of inheritance were used in the reservation of the right of way in either deed. The difference between a reservation and an exception was explained in Ashcroft v. Eastern Railroad Co., 126 Mass. 196, 198, 30 Am.Rep. 672. Until St.1912, c. 502, § 19 (G.L. [Ter.Ed.] c. 183, § 13), the use of the word heirs was necessary to create a reservation in fee, as distinguished from an exception. [Citations omitted.]
In determining whether a particular form of words constitutes an exception or a reservation, little reliance can be placed upon the use of the word reserve or the word except. [Citations omitted.] When the effect of the words is to create in the grantor some easement not before existing, the result is a reservation. [Citations omitted.] But to constitute an exception the easement need not have had a legal existence before the deed. It is sufficient if it exists in fact on the surface of the ground, even though at the time of the deed all the ground is owned by one person. [Citations omitted.]
Tested by this rule, the deeds already described, given in 1848 and 1880, created an exception, and no words of inheritance were needed to give a right of way in fee.
If "fact[s] on the surface of the ground" indicate the existence of the easement it can be deemed to have been created by "exception," rather than by "reservation." Accordingly, in the case of such pre-1912 easements they will run with the land.