This is a proceeding founded upon the petition of Edward H. Brainard, addressed to the board of aldermen of the city of Boston, praying for an assessment of his damages sustained by the location and construction of the railroad of the respondents. In his petition he averred that he was seised and possessed in fee of a certain tract of land and a right of way in a street thirty feet wide adjoining thereto ; and that the respondents had taken a part of said land and the whole of said street for their railroad. It appeared however, upon the trial, that none of the petitioner’s land bad in fact been taken; but that the location of the railroad extended over the whole of that part of the alleged street upon which the land was bounded; and *410that it was upon this account only that he claimed to be entitled to recover damages of the respondents.
To prove his interest and right of way in the alleged street the petitioner produced upon the trial a deed from Henry Gardner, conveying to him a tract of land bounded westerly on Turnpike Street, southerly on Sixth Street, and easterly “by said thirty foot street by a line which is parallel with and one hundred and ninety feet distant from B Street.” B Street is one hundred and sixty feet from said street, which is thirty feet wide. Consequently a line which is one hundred and ninety feet from B Street and parallel to it must be on the westerly side of the alleged thirty foot street. It is apparent therefore that by the description in the deed of Gardner no part of said street was conveyed to the petitioner, but that the whole of it is by the terms of the deed carefully excluded from the conveyance. The petitioner produced no other evidence to show his title to or interest in said street, or that he had any right of way therein. It also appeared that said street was not a public way; that it had never been in fact opened as a private way for the passage of travellers or others therein; and that it had never been occupied or used for any purpose by the petitioner. Upon this evidence and the facts disclosed by it the court below ruled, against the objection of the respondents, that the petitioner had a right of way in said street by virtue of the deed of Gardner to him.
But in all this evidence there was nothing to show that Gardner, the petitioner’s grantor, ever had or claimed to have any right or interest in said street, or any right of way therein from the land conveyed by him. If he never had any such right, it is plain that he could not create it by his own grant. If he had owned the fee in said street, or, as the owner of the adjoining land, bad a right of way there, then his deed to the petitioner would by necessary implication have granted and conveyed that right of way to him, although it was not named or mentioned as part of the estate. O'Linda v. Lothrop, 21 Pick. 292. Tufts v. Charlestown, 2 Gray, 271. But nothing of that kind was shown or appeared upon the trial. It would rather seem that *411he did not have or claim to have any such right or interest, for oy a precise and carefully prepared description he excluded the street and the land over which it extended from his conveyance. Under such a description in the deed, by force of which he sets up and asserts his claim, it is impossible to affirm that the petitioner acquired any title to or right of way in the street, unless it should be also shown that his grantor was owner of the land in fee, or had the asserted right or interest in it.
The request of the respondents, that the court should rule upon the deed and upon all the evidence in relation to the street, that the petitioner had no right of way in it, should have been acceded to. The different and opposite direction which was in fact given, was therefore erroneous, and the exception taken by the respondents must be sustained.
It is unnecessary, for the mere purpose of disposing of the case at this time, to express any opinion upon the other questions raised by them in the progress of the trial. We may however add that in examining the bill of exceptions we have not observed that the ruling of the court was in any other respect obnoxious to any well founded objection.
Exceptions sustained.