Ampagoomian v. Atamian
| Decision Date | 28 October 1948 |
| Citation | 81 N.E.2d 843,323 Mass. 319 |
| Parties | MARY AMPAGOOMIAN v. MARTA ATAMIAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 28, 1948.
Present: QUA, C.
J., LUMMUS, DOLAN RONAN, & SPALDING, JJ.
Easement. Way Private: extent.
A "right of way over" a strip of land which was "to forever be maintained as a driveway" did not include the right to lay gas pipes under the driveway for the purpose of conveying gas to a house on the dominant land.
BILL IN EQUITY filed in the Land Court on October 18, 1944, against Atam Atamian and Marta Atamian.
Marta Atamian filed a suggestion of the death of Atam Atamian on June 30, 1940 and alone defended the case.
The sketch on page 320 shows the main features of premises described in the opinion.
The case was heard by Fenton, J., by whose order a decree dismissing the bill was entered. The plaintiff appealed.
In this court the case was submitted on briefs. F. W. Morrison, for the plaintiff.
G. M. Kurzon, for the defendant.
The plaintiff brought this suit in equity in the Land Court to determine the extent of an easement appurtenant to her land. She also sought to restrain the defendants from interfering with a use, hereinafter described, which she was making of the easement. G. L. (Ter. Ed.) c. 185, Section 1 (k), as appearing in St. 1934, c. 67, Section 1. The evidence is not reported, but the judge made findings of facts.
The facts may be summarized as follows: In 1916 the defendants named in the bill, Atam Atamian and Marta Atamian, [1] acquired by deed an undivided one half interest (ILLUSTRATION) in a certain parcel of land and the buildings thereon in that part of Northbridge known as Whitinsville. At the same time and by the same deed the remaining undivided one half interest in this parcel was conveyed to one Garabed Jigarjian. In September, 1922, Jigarjian conveyed his interest in a portion of this property to the Atamians. By this conveyance the Atamians became the sole owners, subject to an easement presently to be mentioned, of a parcel which was bounded on the north by East Church Street. The deed contained the following provision: "The strip of land fifteen feet wide on the easterly side of the granted premises is to forever be maintained as a driveway." In June, 1926, the Atamians conveyed to Jigarjian their interest in the remaining portion of the original parcel. The deed, after describing the property, recited "Together with a right of way over the grantors' adjoining land, from said East Church Street, southeasterly." By this deed Jigarjian became the sole owner of a lot which was bounded on the north by East Church Street and on the west by the lot owned by the Atamians. Both lots ran back the same distance from the street. In 1937 Jigarjian conveyed a portion of his land in the rear to the plaintiff "together with a right of way over the adjoining land of Atam Atamian et ux from said East Church Street southeasterly." On the plaintiff's lot there is a house, as there is on the lot owned by Jigarjian. These houses "were there in 1916." There is also a house on the Atamians' lot which was built in 1922 or 1923. It was agreed by the parties "that water pipes had been laid from East Church Street throughout the length of the fifteen foot driveway" and that these "supplied the plaintiff's house with water." In August of 1944 the Worcester Gas Light Company at the plaintiff's request "laid gas pipes in the fifteen foot driveway from East Church Street up to the plaintiff's house." Upon learning of this Marta Atamian (hereinafter called the defendant) objected, and it was agreed between her and the gas company that the pipes might remain in the driveway, but not connected, "pending the adjudication of this case." "When the conveyance was made [and] the driveway was created, there was no gas in Whitinsville." No question was raised "as to the right of the plaintiff to use the fifteen foot driveway for ingress and egress to her land, and the defendant admitted at the trial that no question was raised as to the use of the land in said driveway for the water pipes." The sole question for decision in the court below was whether the plaintiff's easement...
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