Bacon v. Onset Bay Grove Ass'n

• Decision Date: 22 May 1922
• Citation: 136 N.E. 813,241 Mass. 417
• Parties: BACON v. ONSET BAY GROVE ASS'N et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 417

136 N.E. 813

BACON

v.ONSET BAY GROVE ASS'N et al.

Supreme Judicial Court of Massachusetts, Plymouth.

May 22, 1922.

Report from Supreme Judicial Court, Plymouth County.

Suit by Cora M. Bacon against the Onset Bay Grove Association and others, to enjoin the alteration and construction of buildings on property in which she claimed an equitable easement as appurtenant to a lot owned by her. Reported by a single justice to the full court. Decree for plaintiff.Harold Williams, Jr., and Harold V. Tillson, both of Boston, and Robert H. Davison, of Cambridge (Barker, White, Wood & Williams, of Boston, of counsel), for plaintiff.

William G. Rowe, of Brockton, for defendants.

JENNEY, J.

The Onset Bay Grove Association, one of the defendants, was incorporated under St. 1877, c. 98,

‘for the purpose of holding personal property and real estate, where a wharf, hotel and other public buildings may be erected, and building lots sold or leased for the erection of private residences or cottages, under such rules and regulations as the association may prescribe.’

Its real purpose as admitted by the answer of both defendants was:

‘To establish a place where those who were believers in the doctrine of Spiritualism could congregate, and where camp meetings especially for those who were believers in that doctrine could be held.’

The plaintiff owns a lot of land with buildings thereon situated in that part of the town of Wareham known as Onset. The lot is part of a largely wooded tract of about 150 acres situated on Onset Harbor, at or near the head of Buzzards Bay, and owned in 1877 by the Onset Bay Grove Association. The natural advantages of the location were widely advertised, the place acquired almost immediate popularity and had a rapid growth, both of which elements of prosperity have since continued. A village of considerable extent now exists, having many inhabitantsthroughout the year, although it still depends for the most part upon summer residents for its existence.

The association soon after it acquired the land caused a plan to be made showing the division of the land into approximately 791 small house lots, a camp ground, many ways, parks, groves, squares, and reserved spaces. The original of this plan was recorded in the proper registry of deeds. Conveyances of property very generally, if not altogether, since 1878 have been made by reference to the plan.

The association conveyed to Jane M. Nickerson the lot which the plaintiff now owns by deed dated May 24, 1877, acknowledged on May 25, 1877, and recorded on November 17, 1885. Hall v. Sears, 210 Mass. 185, 96 N. E. 141. The entire description contained in the deed is:

‘Lot numbered two hundred and twenty-six (226) on a plan of lands Onset Bay Grove Association, recorded in registry of deeds for Plymouth county, Plan Book No. 1, folio 58, as the same is set out on said plan.’

The plan hereinbefore referred to is that described in the deed. The plaintiff by mesne conveyance has become the owner of the lot and has whatever property rights which vested in the original grantee. Her lot is on the corner of Park street and Union avenue, both shown on said plan, and has an area of 3,878 square feet. Since 1890 it has had upon it two summer cottages, now occupied by the plaintiff and her tenants in the spring and summer months.

The plan shows on Union avenue directly across from the plaintiff's land wooded spaces entitled ‘Pavilion Park,’ ‘Union Square,’ and ‘Waban Square,’ and beyond these and continuing down to the water front ‘Prospect Park,’ and near by ‘Bay View Grove.’ On Pavilion Park, which contains about 1 1/2 acres, the plan shows what the evidence discloses to be a speakers' stand with seats fronting it. The water front is about 500 feet from the plaintiff's property and the intervening land as shown on the plan wholly consists of these parks, squares, paths, and one avenue. This part of the plan is to be reproduced herewith.

The main question is as to the plaintiff's rights, if any, in Pavilion Park and in Union Square, which has been treated and known as a part of Pavilion Park, the plaintiff contending that she has an equitable easement therein.

No question of dedication or other public right is involved. See Attorney General v. Onset Bay Grove Association, 221 Mass. 342, 109 N. E. 165, where Union Square and Pavilion Park were not included in the direction of a decree enjoining interference with the public use of an easement there held to exist as to parks, squares, water front, and beaches shown on the plans of the defendant association.

The effect of the reference in a deed to a plan has been considered in many cases. In Light v. Goddard, 11 Allen, 5, 8, it was said:

‘We do not think that a mere reference to a plan in the descriptive part of a deed carries with it by necessary implication an agreement or stipulation that the condition of land, not adjacent to, but lying in the vicinity of, that granted, as shown on the plan, or the use to which it is represented on the plan to be appropriated, shall forever continue the same so far as it may be indirectly beneficial to the land included in the deed, and was within the power or control of the grantor at the time of the grant. Certainly no case has been cited which supports so broad a doctrine. But, in the present case, it seems to us to be clear on the face of the deed that the grantors did not intend to convey any such right or privilege as that now asserted by the plaintiff.’

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In Boston Water Power Co. v. Boston, 127 Mass. 374, 376, where a plan was referred to in a deed, the court said:

‘It must be considered as making a part of the contract in each case, so far as is necessary to aid in the identification of the lots, and the description of the rights intended to be conveyed. All the particulars appearing on the plan and applicable to these lots are to be regarded as if they had been fully set forth in the deeds.’

This language was quoted with approval in Lagorio v. Lewenberg, 226 Mass. 464, 115 N. E. 979. See Kaatz v. Curtis, 215 Mass. 311, 102 N. E. 424.

Where land was ‘bounded and described according to a plan’ the reference was said to have been made for the purpose of boundary and description and that ‘there is no presumption that a reference to one enlarges or adds to the easements otherwise conveyed.’ Williams v. Boston Water Power Co., 134 Mass. 406, 416. See also Attorney General v. Whitney, 137 Mass. 450, 455. In Downey v. H. P. Hood & Sons, 203 Mass. 4, 10, 89 N. E. 24, reference to a plan was said to be--

‘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 were incorporated by reference in each deed, as if they had been recited at length.’

[2][3] However, where land is conveyed by reference to a plan, in the absence of an express grant no onerous servitude is created over other land of the grantor shown on the plan, where such right is not necessary for the enjoyment of the premises, unless shown to be intended by the parties to the deed. In determining the intent, the entire situation at the time of the conveyance must be considered. Prentiss v. Gloucester, 236 Mass. 36, 127 N. E. 796.Peck v. Conway, 119 Mass. 546. The necessity need not be an absolute physical one. Gordon-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 410, 97 N. E. 54,38 L. R. A. (N. S.) 882. Each case is to be decided by a determination of the intent as evidenced by the deed and the circumstances in which it was made. Lipsky v. Heller, 199 Mass. 310, 316, 317, 85 N. E. 453;Prentiss v. Gloucester, supra, 236 Mass. at page 52, 127 N. E. 796.

Where the intent is doubtful, the construction of the parties shown by the subsequent use of the land may be resorted to, if such use tends to explain or characterize the deed, or to show its practical construction by the parties, providing the acts relied upon are not so remote in time or so disconnected with the deed--

‘as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it.’ Hurd v. General Electric Co., 215 Mass. 358, 361, 102 N. E. 444;Blais v. Clare, 207 Mass. 67, 92 N. E. 1009;Jennison v. Walker, 11 Gray, 423;Reynolds v. Boston Rubber Co., 160 Mass. 240, 245, 35 N. E. 677.

In determining the question of intent, conditions existing at the time when the deed was made must be considered. The great increase in real estate development in modern times, the divisions of large tracts into small lots, and the promotion of sales by schemes which affect the use of the land by a neighborhood or community rather than by individuals as such, the necessity, which formerly was not so urgent, for open spaces and parks, the needs of a community designed largely for rest and recreation in vacations, and the fact that the general scheme of development was into lots of small size, all may be considered.

We think that the conclusion of the single...