Ball v. Allen
| Decision Date | 20 January 1914 |
| Parties | BALL v. ALLEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A. G. Weeks, of Fall River, for appellant.
Jennings & Brayton, of Fall River, for appellee.
The denial of the motion to recommit was discretionary with the presiding judge, and his decision should not be set aside. Ginn v. Almy, 212 Mass. 486, 99 N.E. 276. Nor are there any exceptions pending before this court, as the appellant mistakenly assumes. It is settled that, without a special order of the court, exceptions to the report of a master are confined to objections presented to and disallowed by him as shown by his report. Smedley v. Johnson, 196 Mass. 316, 317, 82 N.E. 21, and cases cited. The report however, contains no reference to any objections and no special order having been entered it was properly confirmed leaving to the plaintiff on the appeal the question whether upon the pleadings and the report he has made out a case for relief. We are of opinion, for reasons to be stated, that the bill should not have been dismissed.
The plaintiff and defendant derive title from a common devisor whose farm on the easterly side abutted on the Drift-road, a public way running north and sough. By the terms of the will the devisee, under whom the plaintiff claims, took the westerly portion, with an easement in fee to pass and repass over the easterly portion to the Drift-way, he being at one-third of the expense of keeping the way in repair. The master, in applying the devise to the premises finds that the well-defined road which runs thourgh the defendant's land leading easterly from the plaintiff's land to the Drift-way is the right of way or causeway created by the testator, and neither the plaintiff nor her predecessors in title have ever 'defaulted in any duty to share the expense of repairs made to the causeway' which has been in use for something more than a century previous to the present controversy.
The plaintiff's right to the use of the way is not impaired as the defendant has urged, even if of record she is the owner in fee of only six undivided sevenths of the dominant estate. The deed in which the heir of the one-seventh joined with the other tenants only in release of her dower rights apparently conveyed the entire estate, and the deed having been recorded, if the grantee entered into possession claiming title, and openly exercised rights of ownership, there would be evidence of disseisin from which a title by adverse possession could have been found. Joyce v. Dyer, 189 Mass. 64, 67, 68, 75 N.E. 81, 109 Am. St. Rep. 603, and cases cited. But whatever might have been the result if the master had considered this question, the way is appurtenant to the whole tract, as well as to every part into which it might be divided. Baldwin v. B. & M. R. R., 181 Mass. 166, 63 N.E. 428. And the plaintiff having remained in undisturbed occupation, is from the very nature of the estate in possession of every part of the property. Whiting v. Dewey, 15 Pick. 428; Butrick v. Tilton, 141 Mass. 93, 6 N.E. 563. See Morrison v. Holder, 214 Mass. 366, 370, 101 N.E. 1067.
The report locates the way and establishes the plaintiff's rights of user, which she is not found to have exceeded or unreasonably exercised. Ganley v. Looney, 14 Allen, 40. But shortly before the bill was filed the defendant, as the master reports, asserted that the plaintiff had no easement or right in the causeway, and forbade her to pass over it. This denial by the owner of the servient estate, coupled with his refusal of ingress and egress, and the master's findings to which we have referred, are sufficient to enable her to seek the aid of a court of equity. Hogan v. Barry, 143 Mass. 538, 10 N.E. 253; Whittenton Mfg. Co. v. Staples, 164 Mass. 319, 41 M. E. 441, 29 L. R. A. 500; Lipsky v. Heller, 199 Mass. 310, 85 N.E. 453.
It is necessary, however, before relief can be administered, to determine what limitations or restrictions of the original easement have been acquired by the open, continuous and adverse acts which the master finds have been exercised by the owners of the servient estate. Jennison v Walker, 11 Gray, 423, 425; Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544, 549; Smith v. Langewald, 140 Mass. 205, 207, 4 N.E. 571. The defendant's farm is divided by the causeway, although the respective proportions on either side do not appear, and he and his predecessors have used it in connection with the northerly and southerly parts. While the owner of the servient estate may fence the sides of the way, the defendant owns the soil and if necessary for his own protection in the...
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