Anzalone v. Metro. Dist. Comm'n of Commonwealth of Massachusetts
| Decision Date | 18 September 1926 |
| Parties | ANZALONE v. METROPOLITAN DISTRICT COMMISSION OF COMMONWEALTH OF MASSACHUSETTS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Supreme Judicial Court, Suffolk County.
Petition for mandamus by Charles Anzalone against the Metropolitan District Commission of the Commonwealth of Massachusetts, to require respondents to grant permission for a right of entrance from a public way to petitioner's land. On report. Writ to issue.L. A. Mayberry, P. Mansfield, and W. F. Levis, all of Boston, for petitioner.
C. F. Lovejoy, Asst. Atty. Gen., for respondents.
This is a petition for a writ of mandamus to require the respondents to grant permission for a right of entrance from Fellsway West, in Medford, to the petitioner's land. The case is reported upon the petition, answer and agreed statement of facts for the determination of this court.
In 1897 Catherine Hook, guardian of Mary E. Hook, conveyed to the commonwealth under license from the probate court part of a tract of land in Medford by deed containing the following provision:
‘And for the above-named consideration, and the further consideration that said commonwealth of Massachusetts shall construct along the boundary line of said parkway, within said parcel of land, a roadway and walk to which said Mary E. Hook and her heirs and assigns (owners or occupants of adjoining lands now of grantor) shall have free access, with the right to use the same for the purposes of a way, subject to such reasonable rules and regulations as may from time to time be made by the metropolitan park commission of said commonwealth, or by any other board or department having for the time being the control and management of said parkway.’
The grantor then covenanted for Mary E. Hook and her heirs and assigns to hold her remaining land abutting on the parkway and to a distance of one hundred feet therefrom subject to certain restrictions which were to be inserted or referred to in any conveyance thereafter made of the whole or any part of the restricted land. The deed then provided that:
‘The restrictions above set forth shall continue in force so long as such roadway and walk shall be maintained by said commonwealth of Massachusetts, and the grantor, her heirs and assigns, owners or occupants of grantor's now adjoining lands, shall have free access thereto and liberty to use the same for the purposes of a way, subject to the rules and regulations aforesaid.’
Thereafter the respondents constructed on the land conveyed a roadway, called Fellsway West, with cinder sidewalk and a narrow strip of grass parking adjacent thereto.
On October 1, 1925, the petitioner applied to the respondents for a right of way for the purpose of an entrance for pleasure vehicles only on Fellsway West, as shown on a diagram, and on October 5, 1925, he was notified that the commission deemed it inadvisable to grant permission for the entrance requested.
It appears from the plan and agreed facts that the entrance sought was thirty feet in width from the petitioner's land across the sidewalk and the strip of grass to the part of the roadway intended for use by vehicles. The petitioner owns substantially all of the land formerly owned by Mary E. Hook after the conveyance to the commonwealth, as an abutter on the land so conveyed, and it was admitted in the answer that he succeeded to the rights of Mary E. Hook reserved under the deed and thus acquired the right to have free access to the roadway or parkway known as Fellsway West, with the right to use the same for the purposes of a way, subject to such reasonable rules and regulations as might from time to time be adopted by such board as might at the time have the control and management of the parkway.
One of the purposes for which the right of entrance is sought by the petitioner is for the use of automobiles resorting to a gasoline filling station upon a part of his premises; but he also desires it for all purposes of access to his property. He has a permit from the proper officials to maintain and operate a gasoline filling station, and it is operated and maintained in conformity to law, and is not in violation of any restriction in the deed from Hook to the commonwealth.
It appears from the agreed facts that former members of the commission have in a few cases granted to persons, firms or corporations the right to construct a way from roadways or boulevards of the same character or type as Fellsway West to adjacent premises, upon some of which the owners or others were engaged in the business of maintaining a filling station of the same type as that located on the petitioner's premises.
Under the statutes of the commonwealth the respondents are authorized to make rules and regulations for the government and use of boulevards under their care. The only rule or regulation heretofore adopted material to this case is: By the terms of the deed of the petitioner's predecessor in title the right of access was to be subject to reasonable rules and regulations of the respondents. The petitioner's application was not refused because of the particular place where the way was proposed to cross the sidewalk or grass parking line, nor because the respondents preferred any other location, but solely because the way was intended in part for access to a gasoline filling station for which a small portion of the petitioner's premises is used. The question presented is not whether the proposed entrance is at an appropriate place or of a proper width or construction, but whether the petitioner can be deprived of any access to his property from the roadway because the entrance would be used to some extent in connection with the business conducted on his premises. The provisions of the deed do not prevent the petitioner from using the restricted area for going to and from his gasoline station constructed on the part which is not restricted.
The roadway in question was constructed by the commonwealth under St. 1894, c. 288 (G. L. c. 92, § 35), and is a public way. See Whitney v. Commonwealth, 190 Mass. 531, 535, 77 N. E. 516;Gero v. Metropolitan Park Commissioners, 232 Mass. 389, 393, 122 N. E. 415. Access to a public way is one of the incidents of ownership of land bounding thereon, and this right is appurtenant to the land and exists when the fee of the way is in the municipality as well as when it is in private ownership. Metcalf v. Mayor and City Council of Boston, 158 Mass. 284, 285, 33 N. E. 586;Attorney General v. Mayor of Boston, ...
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