Toet for breaking and entering the plaintiff’s close.

The answer of the defendant admitted the plaintiff’s title to the close, but alleged that the same was subject to the right of the defendant to enter the close, and to pass to and from the well thereon for the purpose of obtaining water, and that in the proper exercise of that right he entered the close, and not otherwise.

At the trial in the Superior Court, before Aldrich, J., without a jury, the plaintiff put in evidence a deed of the said land, from the defendant to Henry E. Atwell, dated November 19, 1866, conveying the granted premises by metes and bounds, and containing the following clauses: “ Together with a right of way over the passage way on the southeasterly side of the above described lot to and from the barn now standing on said premises. And the aforesaid grantor reserves the privilege of passing over said conveyed lot to and from the well to draw water. And the aforesaid grantee is to build and maintain the fence on the southeasterly line of said lot adjoining my remaining land, so long as I shall own adjoining.”

The plaintiff also put in evidence a mortgage with a power of sale from Atwell to the defendant, dated November 19, 1866, in which the premises were described by the same metes and bounds as in the said deed, as “ being the same premises which the aforesaid Macomber conveyed to me by his deed of- the date hereof, this mortgage being part of the same transaction ; ” and a deed of the premises to the plaintiff from the defendant, reciting that the latter sold the same on breach of condition by virtue and in pursuance of the power of sale contained in the mortgage. This deed contained the same description by metes and bounds as the first named deed and the mortgage, and the following clause: “ Being the same described in the above named mortgage of the said Henry E. Atwell to me, the aforesaid Joseph L. Macomber.”

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