The two instructions, given at the request of the respondent and of the petitioners respectively, were important as affecting the value of the land, and are inconsistent with each other. They cannot be reconciled by construing the first as a ruling that a right of way existed, and the second as a ruling that this right did not depend upon the deed of Tisdale to the Central Christian Society, in which case, the petitioners contend that, even if the sheriff erred in the latter instruction, the verdict should not be set aside, as it was an error only in stating how the rights of the society were acquired, and immaterial, inasmuch as the respondent was allowed the benefit of such deduction as should properly have been made on account of the existence of such a right of way. The first instruction, given at the request of the respondent, attributes to the deed made by Tisdale to the Central Christian Society, in connection with the facts shown as to the existence of a street with a visible boundary, the effect of creating a right of way in favor of that society, its successors and assigns, over Trescott Street as it then existed; while the second, given at the request of the petitioners, states that the declarations in the deed “ do not impair the right of the petitioners to full damages for all the land embraced in the deed to their ancestor, Joshua B. Tobey, and included in the way laid out.” Not only is a different effect given to the deed in the two instructions, but a different rule of damages prescribed for the jury. Nor is the inconsistency rectified by the addition made by *410the presiding officer to the latter instruction, “ but it is for the jury to say what that right is.” Assuming that he did not thereby leave the jury to judge what the right of the petitioners was under the deed, but only left them to determine its value, (which is the construction most favorable in order to sustain the ruling,) it still left them to determine the value of the right of the petitioners to full damages unimpaired by any declarations in the deed previously made to the Central Christian Society.
Even if the rulings are inconsistent, it is to be decided, however, whether the latter ruling was erroneous, because if this were correct, while that first given was otherwise, the respondent could have no ground of complaint, as-any error into which the jury may have fallen by reason of the confusion in the instructions would necessarily have been in its favor, and the petitioners are satisfied with the verdict.
When a grantor conveys land bounding on a street or way, he and his heirs are estopped to deny the existence of such street or way, and the right thus acquired is not only coextensive with the land conveyed, but embraces the entire length of the way as it is then actually laid out or clearly indicated and prescribed. Stetson v. Dow, 16 Gray, 372, and cases cited. Fox v. Union Sugar Refinery, 109 Mass. 292, 295. The deed to the Central Christian Society bounded its lot on the westerly side of Trescott Street, the grantor being then the owner of the street, and there was evidence that it was then used as a street, its boundaries marked and defined by rows of trees and fences, and that within them was included a portion of the land afterwards sold to Tobey, and for the taking of which the petitioners now claim damages, namely, the portion in the rear of the building then standing on the land, which same building was there when the street was laid out by the city. It is contended that as this area in the rear of the building could have been of no practical use to the society in going to or from its land, it would have no right to have the area kept open for that purpose, even if it was within the rows of trees and fences defining the street on the day of the conveyance. But the way as marked out by its monuments was in view of the parties; its location may fairly be supposed to have entered into the consideration of the purchase; and the question is not here of how much value this portion of the *411way was as then defined, but whether the right to use it passed by estoppel as against the grantor. That it did so pass, and thereby that a servitude was imposed upon the land afterwards granted to Tobey, who took his land subject to it, is well sustained by the authorities. Thomas v. Poole, 7 Gray, 83. Rodgers v. Parker, 9 Gray, 445.
While Tobey did not have notice as clear and effectual as he would have had if a plan had been made and recorded at the time of the deed to the Central Christian Society, instead of a definition of the street by perishable monuments, yet, when he bought in 1856, he had notice by the record that his grantor had in 1848 sold a tract of land bounding on Trescott Street, and it was for him to inquire what that street then was. If he purchased upon the faith of a plan exhibited to him which did not correctly indicate it, such purchase could not deprive the society of its right, or diminish the extent of the street.
Nor, although the right of way which the society had was by estoppel, does the respondent seek to avail itself of it in any such sense as that intended when it is said estoppels can only be availed of by parties or privies. Howe v. Alger, 4 Allen, 206. Braintree v. Hingham, 17 Mass. 432. It asserts no rights by virtue of this estoppel, but in determining what it is to pay on account of land taken by it for public purposes, the fact that the land is subject to certain servitudes which diminish its value, is a legitimate ground for deduction.
The respondent undertook to show that this right of way existed by the deed to the Central Christian Society. That deed was of an estate defeasible on certain conditions subsequent. The burden of proof was on the petitioners to prove that such estate had been defeated by breach of condition and entry therefor, and that consequently they were entitled to damages for injury to the entire estate. Verdict set aside.