The opinion
Hoar, J.
The defendant’s prayer for instructions qualified those which were given by tne court in a material point. It *368 asked the court to inform the jury what would constitute the necessity for the beneficial enjoyment of the plaintiff’s estate which would make an easement pass as appurtenant to it by implication, or as parcel of the grant, where it was not expressly named. That such a necessity does not exist in the view of the law, when an equally beneficial drain could be built on the plaintiff’s land with reasonable labor and expense, has been settled in this commonwealth by the decisions in Johnson v. Jordan, 2 Met. 234 ; Thayer v. Payne, 2 Cush. 327 ; and Carbrey v. Willis, 7 Allen, 364 . The last case has been very recently reported, and we presume was not brought to the notice of the learned chief justice of the superior court. But while it was in the hands of the reporter, the authority of Pyer v. Carter, 1 Hurlst. & Norm. 916, the leading English case on which the plaintiff relies, was wholly denied by the chancellor of England in the opinion given in Suffield v. Brown, 10 Jur. (N. S.) pt. I, 111, which contains an elaborate review of the whole doctrine, resulting in conclusions substantially like those to which we came in Carbrey v. Willis .
The defendant’s exceptions must be sustained, and a new trial granted ; and this will make the exceptions taken by the plaintiff immaterial.
Defendant’s exceptions sustained.