The instructions which the sheriff was requested by the respondents to give to the jury, as to the proper construction and effect of the deed from Tufts to Ferrin, should have been adopted. They were material to the question in controversy between the parties. If the land taken for the public highway was subject to no incumbrance, the petitioner was entitled to recover damages to its full value; but otherwise, only to the amount of what it was worth, subject to the incumbrance. In the deed to Ferrin, the land conveyed to him is, in part, described as “beginning at Bunker Hill Street, on a passage way two rods wide, which is to be laid out between the premises and land of Nathan Adams; thence on said contemplated passage way fifteen rods and three and a half links.” When a grantor conveys land, bounding it on a way or street, he and his heirs are estopped to deny that there is such a street or way. This is not descriptive merely, but an implied covenant of the existence of the way. It was so expressly determined in *273the ease of Parker v. Smith, 17 Mass. 413. This doctrine was subsequently reexamined, and the former decision confirmed, in the case of O'Linda v. Lothrop, 21 Pick. 292. The description of the way, in the deed, as a “contemplated pasgage way,” shows the agreement of the parties, that there should be such a passage way, as distinctly as if it had been already laid out; and has the like effect, by way of covenant and estoppel, as a description of a way already laid out. And the obligation, assumed by Tufts, to make and maintain the fence, necessarily imports the future and continued existence of the fence. That stipulation also shows the intention of the parties that the passage way should be fenced off from the land described; but does not in terms, nor by implication, exclude the passage way from the premises; and cannot therefore have the effect, contended for by the petitioner, of limiting the previous description, or the covenant therein implied. Ferrin therefore acquired for himself, his heirs and assigns, a perpetual easement, or right of passing and repassing over the contemplated passage way, from which they could not be excluded, and which could not be shut up against them by their grantor or those in privity of estate with him. The sheriff declined to advise the jury to this effect; but gave them instructions which were calculated to enhance the damage beyond the amount which the petitioner was justly entitled to recover. And for that reason the verdict must be set aside.
A new trial was had before the sheriff, and resulted in a verdict of $1,000 for the petitioner.