if he could by great care discover who | most perilous places and in the manipulawanted to get off, whether they wanted to tion and use of the most dangerous agenget off, that would be equivalent to actual knowledge on the subject." To this instruction the defendant seasonably excepted. The defendant also requested certain instructions, but, in view of the conclusion necessarily arrived at with respect to the above instruction, it becomes unnecessary to consider this request by the defendant. We think the exception must be sustained. The instruction imposed upon the conductor the duty of exercising "great care" to discover if anyone wanted to get off the car. This instruction is not modified by any other clause in the charge, but rather emphasized by the statement, made immediately before it, that "the railroad was bound to use greater than ordinary care."

We think the law required that the conductor should have acted only in the exercise of reasonable care. The phrase "great care," as used in the instruction, was without limitation. It was left entirely to the jury to say what meaning should be attached to it. They may have said that it was the duty of the conductor to inquire of every passenger upon his car if they wished to alight, and that, if he failed to do this in the exercise of the duty requiring "great care," he was negligent. Or, if so strenuous a duty as to inquire of each passenger was not deemed necessary in the exercise of "great care," the jury might have found that some other burdensome duty was imposed by the instruction given.

The rule of law now generally recognized by the great weight of authority is that the legal measure of duty, except that made absolute by law, with respect to nearly all legal relations, is better expressed by the phrases "due care," "reasonable care." or "ordinary care," terms used interchangeably. "Reasonable care" may be defined as such care as an ordinarily reasonable and prudent person exercises with respect to his own affairs, under like circumstances. In this definition it is the phrase "under like circumstances" that imposes upon the term "reasonable care" both its limitations and its elasticity. The term is a relative one; that is, the same act under one set of circumstances might be considered due care, and under different conditions a want of due care or negligence. Therefore the duty intended by the use of the phrase "ordinary care" is always referable to the circumstances and conditions under which the act or omission to act is required to be performed. These limit or define the scope of the situation within which the performance of the same act may be called reasonable or unreasonable. The same rule is now generally held to apply to employment in the

cies. A person may be engaged upon a most treacherous machine, yet the employer is held only to the exercise of reasonable care in explaining the hazard connected with the machine and the operation of it. One may employ the use of dynamite or any other powerful explosive, and yet he is responsible only for due care. But in each of these cases due care, under the flexibility of the definition given, might, in the minds of the jury or of the court, require the exercise of the highest possible care which human effort could bestow; but yet it would be in the end only such care as an ordinarily prudent and careful man would exercise, under like circumstances, with respect to his own affairs.

Am. & Eng. Enc. Law, 2d ed. vol. 21, p. 459, under the heading "Degree of Negligence," summarizes the authorities as follows: "The theory that there are three degrees of negligence, described as 'slight,' 'ordinary,' and 'gross,' was introduced into the common law from some of the commentators on Roman law. While not infrequent references are still found in judicial discussions of the subject to the classification of negligence into degrees, the tendency of modern authority and the weight of the best considered cases are now opposed to this view, holding that in every case negligence, however described, is merely a failure to bestow the care and skill which the situation demands, and hence it is more accurate to call it simply negligence. Some decisions even go further and declare that the classification of negligence into degrees is a matter of pure speculation and of no practical consequence; that it is useless and tends to confusion; and that in fact it is unsafe to base any legal decision on distinctions in the degrees of negligence."

In The New World v. King, 16 How. 469, 14 L. ed. 1019, Mr. Justice Curtis, in delivering the opinion of the court, said: "The theory that there are three degrees of negligence, described by the terms 'slight,' 'ordinary,' and 'gross,' has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed or capable of being so. thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield until there are so many real exceptions that the rules themselves can scarcely be said to have a real operation." Then he proceeds to quote

One degree,

from Storer v. Gowen, 18 Me. 177, as follows: "How much care will, in a given case, relieve a party from the imputation of gross neglect, or what omission will amount to the charge, is necessarily a question of fact, depending upon a great variety of circumstances which the law cannot exactly define."

In Perkins v. New York C. R. Co. 24 N. Y. 196, 82 Am. Dec. 281, the court says: "I think with Lord Denman, who, in Hinton, v. Dibbin, 2 Q. B. 661, said: 'It may well be doubted whether between "gross negligence" and "negligence" merely, any intelligible distinction exists.'

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C. J. BAILEY et al.

In New York C. R. Co. v. Lockwood, 17 MASSACHUSETTS SUPREME JUDICIAL Wall. 382, 21 L. ed. 641, Mr. Justice Bradley, delivering the opinion of the court, said: "We have already adverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary negligence. And this seems to be the

tendency of modern authorities."

In Milwaukee & St. P. R. Co. v. Arms, 91 U. S. p. 494, 23 L. ed. 376, the court says: "This court has expressed its disapprobation of these attempts to fix the degrees of negligence by legal definitions.

Some of the highest English courts have come to the conclusion that there is

no intelligible aistinction between ordinary and gross negligence. . 'Gross negligence' is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term 'ordinary negligence;' but after all it means the absence of the care that was necessary under the circumstances." See also Rouse v. Downs, 5 Kan. App. 549, 47 Pac. 982; McPheeters v. Hannibal & St. J. R. Co. 45 Mo. 22; Reed v. Western U. Teleg. Co. 135 Mo. 661, 34 L. R. A. 492, 58 Am. St. Rep. 609, 37 S. W. 904; Culbertson v. Holiday, 50

Neb. 229, 69 N. W. 853.

It will be here observed that the courts, in discussing the above propositions, have used the term "negligence," instead of the word "care," to express the measure of duty. But confusion has arisen from regarding "negligence" as a positive, instead of a negative, word.

For this reason, it is usual to express the duty owed in positive terms by stating what constitutes "due care," rather than in negative terms by stating what constitutes "negligence," which is the unintentional failure to perform a duty implied by law. "Negligence" is the opposite of "due care." Where due care is found, there is no negligence. If there is a want of due care, then there is negligence. We are inclined to agree with the great weight of judicial opinion that the attempt to divide "negligence," or its opposite "due care," into degrees, will often



(190 Mass. 20, 76 N. E. 449.)

Deed-right of way-enforcement.

1. A provision in a deed that a passageway shall be kept open, although not valid as a reservation for failure to use the word "heirs," may be enforced against

Case Note. Whatever novelty there may be in the above case lies in the application of the subjacent principle to its peculiar facts, for it is well settled that an agreement relating to rights in land, though not amounting to a covenant running with the land, may be enforced in equity against subsequent purchasers with notice.


An easement, being an estate in land, can only be created by grant, actual or presumed, or by an exception or reservation contained in a grant. Also, it is commonly said that easements may be created by agreements or covenants that one shall have a right or privilege in an estate of another, as well as by express grants, and that such agreements are grants in effect; but, while they may operate to secure right which in effect is an easement, it is technically incorrect to denominate them as such, for the reason above stated. Such agreements may be divided into two classes: Those which run with the land, and hence are binding upon subsequent grantees, and those of the kind under discussion, the enforcement of which is possible only in equity.

Of these quasi easements, the most common are the so-called negative easements or amenities, which restrain the owner from doing that with and upon property which, but for the covenant, he might lawfully have done. Such are restrictions of the uses to which the granted premises may be put, concerning which it is said in Whitney v. Union R. Co. 11 Gray, 359, 71 Am. Dec. 715: "The better opinion would seem to be that such agreements are valid, and capable of being enforced in equity against all

transferees with notice as a contract in writing capable of being specifically enforced in equity.

Same-property benefited.

ty made during the trial of an action brought to recover damages for breach of covenant, which resulted in a verdict in plaintiffs' favor. Sustained in part.

The facts are stated in the opinion. Mr. Charles H. Beckwith, for defendant: Being a way created by reservation, and not by exception, its duration was for the life of Roger S. Moore only, because it was not reserved to him and his heirs.

2. A provision in a deed granting a portion of a lot that a passageway is to be kept open and for use in common between the two houses, a portion to be furnished by grantor and grantee respectively, does not limit the right to a use in connection with the houses, but it extends to all the tract of land affected by the conveyance. Covenant-damages for breach-assessment. 359, 57 N. E. 674; Claflin v. Boston & A. R.

3. The damages for breach of covenant against encumbrances in a deed conveying real estate are to be assessed, not as of the date of the trial, but of the delivery of the deed, to which interest may be added to the date of the verdict.


(January 2, 1906.)

XCEPTIONS by defendant to rulings of the Superior Court for Hampden Counthose who take the estate with notice of them, although they may not be, strictly speaking, real covenants, so as to run with the land, or of a nature to create a technical qualification of the title conveyed by the deed. This opinion rests on the principle that, as in equity that which is agreed to be done shall be considered as performed, a purchaser of land, with notice of a right or interest in it, subsisting in another, is liable to the same extent and in the same manner as the person from whom he made the purchase, and is bound to do that which his vendor had agreed to perform. Therefore an agreement or covenant, though merely personal in its nature, and not purporting to bind assignees, will nevertheless be enforced against them, unless they have a higher and better equity as bona fide purchasers without notice."

Simpson v. Boston & M. R. Co. 176 Mass.

Co. 157 Mass. 489, 20 L. R. A. 638, 32 N.
E. 659; Ashcroft v. Eastern R. Co. 126
Mass. 196, 30 Am. Rep. 672; Bean v.
French, 140 Mass. 229, 3 N. E. 206.

The right was abandoned by removal of the house.

Canny v. Andrews, 123 Mass. 155; King v. Murphy, 140 Mass. 254, 4 N. E. 566; Dyer v. Sanford, 9 Met. 395, 43 Am. Dec. 399; Am. Dec. 632, in which a similar restriction was involved, is to the same effect; the court saying: "A court of chancery will recognize and enforce agreements concerning the occupation and mode of use of real estate, although they are not expressed with technical accuracy, as exceptions or reservations out of a grant not binding as covenants real running with the land."

A covenant not to sell any sand off from the land granted was held in Hodge v. Sloan, 107 N. Y. 244, 1 Am. St. Rep. 816, 17 N. E. 335, to be binding upon, and enforceable against, the grantee of the covenantor taking title with notice of the restriction, even though the covenant was not one technically attached to and concerning the land, and so running with the title.

The doctrine under discussion is not limited, however, to cases of agreement imposing restrictions, but is also applicable to cases where a positive right is thus attempted to be secured. Such a case is Joy v. St. Louis, 138 U. S. 1, 34 L. ed. 843, 11 Sup. Ct. Rep. 243, which holds a covenant in an agreement made by a railroad company with park commissioners from whom it received the right of way through a public park, to permit other railroad companies to use such right of way, to be binding on subsequent purchasers, with notice from such company.

In the similar case of Columbia College v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615, where owners of adjoining tracts mutually covenanted to reserve the property exclusively for dwelling houses, it was said: "Each successive grantee, from Beers, the covenantor, down to and including the defendant Lynch, the present owner, not only had notice of the covenant, and all equities growing out of the same, but took their title in terms subject to it, and impliedly agreeing to observe it. It would be unreasonable and unconscientious to hold the Another case is that of Middletown v. grantees absolved from the covenant in Newport Hospital, 16 R. I. 319, 1 L. R. A. equity for the technical reason assigned, 191, 15 Atl. 800, where it was held that all that it did not run with the land, so as to the successors in title of the person to give an action at law. The lan- whom a deed of a beach had been given, guage of courts and of judges has been very and who at the same time executed a bond uniform and very decided upon this sub-conditioned on the allowance to the inject, and all agree that whoever purchases lands upon which the owner has imposed an easement of any kind, or created a charge which would be enforced in equity against him, takes the title subject to all easements, equities, and charges, however created, of which he has notice."

Parker v. Nightingale, 6 Allen, 341, 83

habitants of the town from which the grant proceeded certain liberties and privileges, including rights of entry and passage and of collecting and asporting sand, seaweed, shells, and drift stuff, were chargeable with notice thereof, since it was in their line of title, and accordingly bound by its provisions.

Butterfield v. Reed, 160 Mass. 361, 35 N. | B, E, F, C, which is not shown thereon. On E. 1128.

The rule of damages in case of an encumbrance which is perpetual is "a just compensation. for the real injury resulting from the encumbrance."

Batchelder v. Sturgis, 3 Cush. 201; Bradshaw v. Crosby, 151 Mass. 237, 24 N. E. 47. Messrs. Stephen S. Taft and Dexter E. Tilley, for plaintiffs:

The estate in the land conveyed to Henry, which remained in Moore, was an estate created by exception.

December 1, 1862, Moore conveyed to one Henry in fee lot A, B, C, D, by deed, in which, after the description of the land conveyed, is this provision: "A passageway is to be kept open and for use in common between the two houses 10 feet in width, 5 feet of said passageway to be furnished by said Henry and 5 feet by me, from land lying east of the land here conveyed. To have and to hold the aforesaid granted premises to the said Michael Henry his heirs and assigns, to their use and behoof forever." The bill of exceptions states that "the said passageway is represented by G, K, M, H, on the plan. There was no passageway there before this deed." By mesne conveyances parcel A, B, C, D came from Henry to the defendant corporation, and was conveyed by it to the plaintiffs by a full warranty deed dated June 15, 1892. A subsequent owner or owners of any This action was brought for breach of the parcel of that land could enforce the right. covenant against encumbrances in that deed. Underwood v. Carney, 1 Cush. 285; Whit-The breach complained of is the existence ney v. Lee, 1 Allen, 198, 79 Am. Dec. 727. Mere nonuser of an easement, though continued for more than twenty years, will not extinguish it.

Dennis v. Wilson, 107 Mass. 591; Peck v. Conway, 119 Mass. 546; White v. New York & N. E. R. Co. 156 Mass. 181, 30 N. E. 613; Hamlin v. New York & N. E. R. Co. 160 Mass. 459, 36 N. E. 200.

The right of passage was appurtenant to the land.

George v. Cox, 114 Mass. 382.

of a passageway over the 5-foot strip G, B, C, H, part of the parcel A, B, C, D, conveyed to the plaintiffs by said warranty deed, which right is, or is in effect, appurtenant Barnes v. Lloyd, 112 Mass. 224; Eddy v. to the land B, E, F, C. The main defense Chace, 140 Mass. 471, 5 N. E. 306. set up is that the right to a passageway in The measure of damages adopted by the favor of lot B, E, F, C, created by this deed court was correct. over lot G, B, C, H, was a right during the Richmond v. Ames, 164 Mass. 467, 41 N. life of the grantor, and that it came to an E. 671.

end on his death, to wit, on December 31, 1893. The case was tried by the court

Loring, J., delivered the opinion of the without a jury. The judge ruled that the


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right of lot B, E, F, C, in the passageway G, K, M, H, was a right in perpetuity, and assessed the damages as of the date of the trial. In assessing the damages the judge proceeded on the basis that "the right of way was limited in its use to the land mentioned in the deed of Moore to Henry, and its use could not be extended for uses in connection with lands beyond." This refers to lot E, N, O, F, which was not owned by Moore when he conveyed to Henry in December, 1862. The defendant also contended that the right in the passageway was a "restricted right of way to be used only for purposes incident to the use and occupation of a dwelling house on the dominant estate;" that it had been abandoned; and also that, "if the court finds for the plaintiffs, the damages should be assessed as of the date of the delivery of the deed." The judge found for the plaintiff, and assessed damages in the sum of $950, stating that: "I have assessed the damages as of the date of the trial (see Richmond v. Ames, 164 Mass 467, 41 N. E. 671), and I find that the plaintiffs' estate, at the date of the trial, was diminished in value in the sum of nine hundred and fifty dollars ($950) by


reason of the existence of the encumbrance. | equitable restriction over lot A in favor of If the damages shall be assessed as of the lot B. But in case the owner of lot A has date of the deed from the defendant to the made an agreement in writing, but not unplaintiffs, then I find the damages were der seal (and for that reason not capable four hundred and fifty dollars ($450) to of being held to be a grant), that the owner which should be added interest at the rate of lot B shall have a right of way over it in of six per cent per annum, viz., three hun- perpetuity, there is nothing anomalous in dred nineteen dollars and fifty cents holding that this agreement should be spe($319.50) making seven hundred and sixty- cifically enforced in equity against all taking nine dollars and fifty cents ($769.50) in lot A with notice of that agreement in faall." The case is here on exceptions to the vor of the owner of the land for the benefit refusal to rule as requested by the defend- of which the agreement was made. In such a case it may be said, and is said, that there is an equitable restriction on A in favor of B. But that is apt to be misleading. The so-called equitable restriction results from the fact that equity will enforce the agreement against those taking with notice in favor of the then owner of the land to be benefited. Equity does not enforce the agreement because there is an equitable restriction. See Whitney v. Union R. Co., Tulk v. Moxhay, and Harvard Law Rev. ubi supra. This perhaps was lost sight of in the opinion in Hazen v. Mathews, 184 Mass. 388, 68 N. E. 838. Again, there is nothing anoma

to a passageway. An injunction against obstructing it is the usual remedy invoked by the owner of a legal easement to that effect. And many an indenture under seal, as to setbacks and restrictions on the kind of buildings to be erected and the use to be made of them, has been held to create a legal easement, although the rights under them undoubtedly are usually spoken of as equitable restrictions. For instances, see Hogan v. Barry, 143 Mass. 538, 10 N. E. 253; Ladd v. Boston, 151 Mass. 585, 21 Am. St. Rep. 481, 24 N. E. 858.

1. As matter of construction of the clause here in question, it was (in our opinion) | the intention of the parties to it that the rights in the passageway 10 feet wide, there provided for, should be rights in perpetuity, and for the benefit of the two adjoining lots of land. If this clause is to operate in favor of the grantor, Moore, by way of reservation or exception, this intention fails, so far as half the passageway, to wit, lot G, B, C, H, is concerned, for lack of the word "heirs." If it is to operate by way of reservation, that is to say, by implied grant by the grantee to the grantor,-lous in going into equity to enforce a right the word "heirs" is necessary. Ashcroft v. Eastern R. Co. 126 Mass. 196, 30 Am. Rep. 672. It cannot operate under the Massachusetts doctrine by way of exception, because it is a new way not existing in law or in fact (that is to say, physically on the ground) at the date of the conveyance. Simpson v. Boston & M. R. Co. 176 Mass. 359, 57 N. E. 674, and cases there cited. But the clause in question does not purport to be a conveyance by way of exception or reservation; it purports to be a contract, which, as we have said, as matter of construction, provides for a passageway in perpetuity for the benefit of the two adjoining lots of land. And it is a contract of which the grantee Henry's successors have taken with notice. Having taken their estate with notice of it, Henry's grantees are bound in equity to perform it. It was on this ground, namely, that the subsequent grantee took with notice of the prior agreement imposed in perpetuity for the benefit of adjoining lands, that the right to equitable relief by specific performance of a contract restricting the use of land in respect to the build-clause which was in terms a reservation in ings to be erected on it, and the use to be made of them, was established when both the land benefited and that subjected to that burden had passed to grantees. Whitney v. Union R. Co. 11 Gray, 359, 71 Am. Dec. 715; Tulk v. Moxhay, 2 Phill. Ch. 774. And see 17 Harvard Law Rev. 174. It is on its face a novel proposition that there should be a right to a passageway by way of

It remains to say a word of the cases in which a reservation has been held to be for life only, for lack of the word "heirs." Claflin v. Boston & A. R. Co. 157 Mass. 489, 20 L, R. A. 638, 32 N. E. 659, was an action of tort for obstructing a right of way. To maintain a way in that case it was necessary to make out a legal easement. The same, however, is not true of Ashcroft v. Eastern R. Co. or of Simpson v. Boston & M. R. Co. supra. In Simpson v. Boston & M. R. Co. there is nothing to show that the

favor of the grantor was intended to be perpetual. Neither one of these two things, however, is true of Ashcroft v. Eastern R. Co. supra. The plaintiff in that case brought a bill in equity, and the clause was, "reserving to myself the right of passing and repassing and repairing my aqueduct logs forever, through a culvert 6 feet wide and rising in height to the superstructure

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