Downey v. H.P. Hood & Sons
| Decision Date | 24 June 1909 |
| Citation | 203 Mass. 4,89 N.E. 24 |
| Parties | DOWNEY et al. v. H. P. HOOD & SONS. CASSIDY et al. v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John F. McDonald and Jas M. Graham, for plaintiffs.
Whipple Sears & Ogden and Olcott O. Partridge, for defendants.
The executors of the will of Rebecca Weld divided a tract of land belonging to her estate into house lots, and prepared a plan designating them by numbers, with three proposed streets on which 45 of the lots abutted. The remaining 5 lots fronted the highway on the south, with which the streets connected affording the only means of access to the public ways. They then conveyed the premises to one Weld, describing them as 'shown on the plan to be recorded herewith.' The deed and plan having been recorded, the subsequent deeds given by him, under which the parties derive their respective titles, describe the estate conveyed by reference to the plan, with the number of the lot, and name of the street on which it is bounded. It is evident upon an inspection of a copy of the plan, and from the configuration of the land, that while designated by different names for convenience of location, or possibly to attact buyers, the streets formed a continuous passageway, so laid out that each end takes its departure from the highway into which both ends also open, affording to all abutters equal facilities of entrance, and exit to their estates. The plan forms a part of the contract of sale, not only for the purpose of ascertaining the lot conveyed, but including the description of the appurtenant rights which were intended to attach. These particulars are incorporated by reference in each deed as if they had been recited at length. Boston Water Power Co. v. Boston, 127 Mass. 374; Lipsky v. Heller, 199 Mass. 310, 85 N.E. 453. By this reference, and by the boundaries, the defendant, who claims under the common grantor by purchase, is estopped to deny the existence of the street for the entire distance. Thomas v. Poole, 7 Gray, 83; Rodgers v. Parker, 9 Gray, 445; Fox v. Union Sugar Refinery, 109 Mass. 292; Drew v. Wiswall, 183 Mass. 554, 67 N.E. 666; Lipsky v. Heller, 199 Mass. 310, 85 N.E. 453. In Regan v. Boston Gaslight Co., 137 Mass. 37, and Pearson v. Allen, 151 Mass. 79, 23 N.E. 731, 21 Am. St. Rep. 426, a large tract of land having been laid out with a series of streets remote from the plaintiff's lot, it was held that although shown by the recorded plan they might be closed, if the private ways adjoining the lot, and leading to the highways, with which they connected, were left unobstructed. But the present plaintiffs, even if the easement were treated as divisible into three separate streets, are entitled to have them kept open, because going in either direction they afford the only communication with the highway. It would not curtail their rights, whether they chose to use one end or the other as providing the more convenient mode of travel. Accordingly the right conveyed cannot be limited as the defendant contends, without attempting to make a restrictive distinction between the use of the entrances or exits, which we do not find the original grantors intended. Nor was the easement as thus defined extinguished, by the taking of a portion of the way in width at the point where it came within the limits prescribed by the decree, in the proceedings for the changes in the location of the railroad. Its extinguishment would have followed as to the part taken, if the entire space had been appropriated. Central Wharf Co. v. India Wharf Co., 123 Mass. 567. While the plaintiffs, or their predecessors in title, presumably were compensated by the assessment of damages under Rev. Laws, c. 111, § 153, for whatever injury may have been caused to their property, they still retained their rights unimpaired in the remainder of the way, as it was left after the completion of the work. The fences which the defendant has erected and maintained, and the building which it proposes to erect on a site including a large portion of the way constitute an unjustifiable interference with the plaintiffs' easement. O'Brien v. Murphy, 189 Mass. 353, 356, 75 N.E. 700. Generally, the appropriate remedy to redress injury already inflicted, and to prevent the imposition of a greater and more permanent wrong, would be an injunction directing the defendant to remove the fences, and enjoining it from erecting the proposed building over the way, while retaining the bill for the assessment of such money damages as may have been suffered. Harrington v. McCarthy, 169 Mass. 492, 48 N.E. 278, 61 Am. St. Rep. 298; O'Brien v. Murphy, 189 Mass. 353, 75 N.E. 700; Stewart v. Joyce, 201 Mass. 301, 87 N.E. 613. It having been found by the trial court that because of its...
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