Akasu v. Power

• Decision Date: 10 March 1950
• Parties: AKASU v. POWER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 497

91 N.E.2d 224

AKASU v. POWER.

Supreme Judicial Court of Massachusetts, Essex.

March 10, 1950

Argued Nov. 10 1949.

P Strome, and Albert R. Pitcoff, Salem, for plaintiff.

C. M. Crowell Marblehead, for defendant.

Before QUA, C. J and LUMMUS, RONAN, and WILKINS, JJ.

RONAN, Justice.

This is an appeal by the defendant from a decree enjoining him from using a right of way over land of the plaintiff on the ground that the right to use the way has terminated.

The facts appear in the report of a master. Joseph Wormstead, a former owner of the lots now owned by the plaintiff and the defendant respectively, conveyed in 1888 a lot back southwesterly from State Street in Marblehead, hereinafter called the garage, lot, to Rogers and Ware, together with 'a right of way in a passage way ten feet wide leading from the granted premises over my other land to State Street, but the right to use said passage way is on the condition that said grantees and their heirs and assigns shall pay to me and my heirs and assigns the sum of fifteen dollars annually, during the time that they shall use the said passage way.' By mesne conveyances Rebecca B. Nichols became the owner of the garage lot in 1918. One King, who in 1926 became the owner of the property numbered 11 State Street which extended to the garage lot, conveyed the lot adjacent to the rear of the land now owned by the plaintiff and extending to the front of the garage lot to Nichols in 1928. The deed, after describing the lot by metes and bounds, stated, 'This deed is given as an addition to the lot now known as the 'Garage Lot' as for a part and parcel of said lot, and is entitled to all the privileges and appurtences of said 'Garage Lot' as a whole lot.' Nichols also purchased three other neighboring lots, known as the Clark, Dennis, and Coffin lots, Salkins, the conservator of Nichols, sold these five lots as one parcel to the defendant on July 16, 1945. The deed described the boundary along the southeast side of the plaintiff's premises as 'Northwesterly by land formerly of said Wormstead and a way ten feet wide leading from the granted premises to State Street,' and the deed also included the right of way in these words, 'Together with the right to use said tenfoot way to State Street * * *.'

Joseph S. Wormstead, a son of the original grantor Joseph Wormstead, acquired the property now owned by the plaintiff together with the lot in the rear, and sold these premises to King in 1926. The right of way was referred to in the deed to King in these words: 'Premises are conveyed subject to a right of way in a passage way ten feet wide across the granted premises to land formerly of Rogers and Ware.' King conveyed the lot adjacent to the rear of the lot now owned by the plaintiff to Nichols as already stated. Joseph S. Wormstead reacquired the front portion of the King premises, which is the lot now owned by the plaintiff and known as 11 State Street, in May, 1933, and the trustee under his will conveyed these premises to the plaintiff on November 24, 1944. Her deed contained no specific mention of any right of way.

There is a well defined way ten feet wide extending along the southeasterly boundary of the plaintiff's lot from State Street to the garage lot. This way is the main entrance to this lot. There is another way in the rear of this lot extending to Front Street and still another way leading from State Street over other property owned by the defendant, but this last mentioned way is not so convenient to use as the way now in question. A public garage was erected on the garage lot in 1915, and the way over the land now owned by the plaintiff has since been used continuously by vehicles and pedestrians travelling to and from State Street and the garage. Payments for the use of this way were made by the owners of the garage lot to the plaintiff's predecessors in title until 1926, when such payments stopped, and none has since been demanded or paid.

The plaintiff, who occupied her premises for ten years prior to the time she became the owner, knew that the owner of the garage lot was using the right of way, but she never gave any thought to whether such use was under a claim of right or otherwise until the defendant, while negotiating for the purchase of the garage lot, learned of the rental provision, and the plaintiff, when approached in behalf of the defendant, stated that she did not desire any rental but wanted the way closed. During the summer of 1945 she placed a barrier consisting of a board upon two horses across the way. This was removed by the defendant. On November 3, 1945, the defendant made a tender of $15 for the annual rental for the use of the way, which the plaintiff refused to accept.

The deed from Wormstead to Rogers and Ware conveyed as appurtenant to the garage lot a right of way over other land of Wormstead to State Street, Mendall v. Delano, 7 Metc. 176; George v. Cox, 114 Mass. 382; Brooks v. West Boston Gas Co., 260 Mass. 407, 157 N.E. 362; Goldman v. Shulkin, 320 Mass. 161, 165, 69 N.E.2d 573, but the right granted in the way was 'on the condition' that the grantees, their heirs and assigns should pay the stipulated rental for the actual use of the way, and the acceptance by Rogers and Ware of the deed poll implied a promise by them to pay compensation if they made use of the way. Shade v. M. O'Keefe, Inc., 260 Mass. 180, 182, 156 N.E. 867; Durgin v. Allen, 324 Mass. 157, 161, 85 N.E.2d 208. They did not, however, sign any sealed instrument, and the obligation which they assumed to pay was not a covenant running with their land. Maine v. Cumston, 98 Mass. 317; Martin v. Drinan, 128 Mass. 515; Kennedy v. Owen, 136 Mass. 199; Thayer-Foss Co. v. City of Woburn, 269 Mass. 186, 190, 168 N.E. 734.

The plaintiff took title to her land subject to whatever right the assigns of Rogers and Ware had to use the way which was located thereon but they were not entitled to use the way without payment. They could not divorce the obligation to pay from the privilege to use. The defendant had no greater right in the use of the way as against the plaintiff than Rogers and Ware, the original grantees, had as against Wormstead, the original grantor. An easement may be granted which will terminate upon the happening of some particular act or upon the non-performance of a condition subsequent, Bennett v. Newell, 266 Mass. 127, 165 N.E. 27; Hill v. Taylor, 296 Mass. 107, 4 N.E.2d 1008; Goldman v. Shulkin, 320 Mass. 161, 69 N.E.2d 573; 154 A.L.R. 5, note; and the owner of the servient estate whose land has been subjected to an easement by a predecessor in title has the right to challenge the validity, extent or existence of the easement. Indeed, this right appears to be so obvious that it is ordinarily assumed without question in actions brought by the owner of the servient estate. See Jennison...