Anderson v. De Vries

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; RONAN
• Citation: Anderson v. De Vries, 326 Mass. 127, 93 N.E.2d 251 (Mass. 1950)
• Decision Date: 12 June 1950
• Parties: ANDERSON et al. v. DE VRIES et al.

Page 251

93 N.E.2d 251

326 Mass. 127

ANDERSON et al. v. DE VRIES et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Feb. 10, 1950.

Decided June 12, 1950.

A. W. Wunderly, Boston, for respondents.

No argument nor brief for petitioners.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and COUNIHAN, JJ.

RONAN, Justice.

The petitioners owned a certain parcel of land in Dennis known as lot B2 and shown on a subdivision plan number 15396B in the Land Court. They allege that they conveyed a parcel of land to one DeVries and his wife and another parcel to one Reenstierna and his wife out of lot B2; that said lot B2 was subject to an undetermined right of way over the westerly part thereof in favor of other lot owners as noted on the petitioners' certificate of title; and that the beach was subject to the rights of such lot owners. The petition, among other things, sought to have determined the area of the beach which the lot owners are entitled to use in common; and that the right of way previously granted for the benefit of other lot owners be defined. The respondents filed answers. Subsequent to the trial, the Reenstiernas sold their lot and their grantees were made parties respondents. A bank which held a mortgage on the Reenstierna lot has been paid and is no longer interested. The contention of the Reenstiernas and the DeVrieses are substantially similar and for convenience we shall refer to the male grantees as the respondents. Their demurrers, which were overruled by the judge, have been waived. Twenty-six owners of lots which were conveyed out of another parcel known as lot A waived notice in writing and requested that the prayers of the petition be granted. Other lot owners in lot A filed answers claiming a right of way appurtenant to their lots over lot B2 to the beach and the right to use the entire beach. The judge determined that the owners of lots in lot A prior to April 30, 1946, whose deeds, when the lots were originally conveyed out of lot A, mentioned the right of way along the westerly side of lot B2 to the beach, had a right of way substantially twelve feet wide over the location of an old roadway across lot B 2 to the beach, and that they had the right to use and enjoy the entire length of the beach fronting lot B2. The case is here upon exceptions saved by the respondents. They make two principal contentions, first, that the judge erred in locating the right to way over the old roadway instead of along the westerly side of lot B2, and, second, that he erred in deciding that these owners of parcels in lot A had the right to sue the entire beach in front of lot B2.

The petitioners in 1937 acquired, as tenants by the entirety, a strip of land in Dennis, fronting on Nantucket Sound for about three hundred fifty feet and extending inland for a distance of twenty-three hundred feet, and a certificate of title was issued to them from which it appears that the northerly portion was known as lot A and the southerly as lot B2. The lots were separated by Beach Road. Beaton Road was laid out along the northwesterly side of lot A. The petitioners soon after they purchased the land began to develop it for a summer colony. They divided lot A into eighty-one lots and had sold seventy-five of them prior to their conveyances to the respondents of the lots out of B 2. These conveyances appear to be the first sales out of lot B2. The chief inducement for the purchase of parcels in lot A was the right to use the beach for swimming, bathing, and sun bathing. These lot owners used an old roadway to cross lot B2 to reach the beach, and they used the entire length of the beach in front of this lot for the purposes for which beaches at summer resorts are usually enjoyed. The northerly end of this roadway had for many years been located in the only opening in the bank on the southerly side of Beach Road and had run in a general southerly direction to the bank of the beach and then had turned northerly in horseshoe shape back over the easterly part of lot B2 to the public street. The road was located about sixty feet east of the westerly boundary of lot B2. This roadway 'was the only opening in that section of lot B2, had existed over the years, and was plainly discernible.' Steps down to the beach had been maintained at the end of this roadway but the shore and bank had been materially eroded by two hurricanes and the steps had been swept away. An examination of the documents minuted on the petitioners' certificate of title referring to deeds out of lot A and the certificates on record made in accordance with such grants shows that a large number of the grants and certificates contained a substantially uniform clause which read as follows: 'There is appurtenant to above described lot a right of way to the beach over the way shown on said plan as Beaton Road, and along the westerly side of lot B2 as shown on Plan No. 15396B, in common with others entitled thereto.' The judge stated that these deeds and certificates 'disclose grants of an undefined right of way over part of lot B2 to the beach' and that the plans do not show the location of the right of way.

The petitioners conveyed on April 30, 1946, a lot about sixty feet wide, which extended the entire depth of lot B2 and was adjacent to the westerly boundary of lot B2, to DeVries and his wife. This lot was bounded on the east by a right of way twelve feet wide. In May, 1946, the petitioners conveyed a lot to Reenstierna and his wife. This lot was bounded on the west by this right of way and, like the DeVries lot, extended the entire depth of lot B2 and was a little more than fifty feet wide. The way between these lots was the way determined by the judge as the one which the owners of parcels in lot A had the right to use to reach the beach. The judge found that this way was the only practical and reasonable way to go over the westerly part of lot B2 to the beach and was the one constantly used for this purpose over the years; that all the circumstances attending the conveyances of parcels in lot A, the character of the terrain, the proximity to the ocean, and the actual use of this way point to its location as the one intended by the parties; that the words 'to the beach' carried with them the use of the beach; that the respondents were apprised of the only opening in the bank on Beach Road near their lots which ran toward the beach for a short distance; and that they were told that a way existed there running to the beach and that parties had rights in the beach. He found that they were not purchasers for value in good faith as to the right of way and the use of the beach.

We think there was error in identifying the way existing across lot B2 as the way described in the deeds and the certificates of title issued to purchasers of parcels in lot A. It is true that the width of the way described in these instruments was not defined therein, and if the parties did not agree upon a suitable and convenient width for the purpose for which the easement was created, the width could be fixed and determined by the court. George v. Cox, 114 Mass. 382; McKenney v. McKenney, 216 Mass. 248, 103 N.E. 631; Barrentt v. Duchaine, 254 Mass. 37, 149 N.E. 632. But these deeds and certificates provided for a right of way 'along the westerly side of lot B2.' These instruments cannot be construed as locating a way anywhere in the westerly half or portion of lot B2 which had a width of three hundred fifty feet, and they could not be interpreted, as the judge apparently ruled, as locating a way some sixty feet east of the westerly boundary of this lot. See Hart v. Western R. Corp., 13 Metc. 99, 104, 46 Am.Dec. 719; O'Brien v. Schayer, 124 Mass. 211, 212; Commonwealth v. Franklin, 133 Mass. 569, 570; O'Brien v. Murphy, 189 Mass. 353, 355-356, 75 N.E. 700; Lipsky v. Heller, 199 Mass. 310, 318, 85 N.E. 453; Kaatz v. Curtis, 215 Mass. 311, 314, 102 N.E. 424; Siegel v. Starzyk, 238 Mass. 291, 297, 130 N.E. 499; Peavey v. Moran, 256 Mass. 311, 314, 152 N.E. 360; Buckley v. Gray, 285 Mass. 110, 116, 188 N.E. 610.

The respondents, however, before they purchased their lots, had actual notice of the existence of a right of way over the old roadway in substantially the same place as it was subsequently located by the judge. A purchaser of a servient...