Bass v. Edwards

• Decision Date: 04 March 1879
• Parties: Lewis Bass v. James Edwards
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 445

Lewis Bass v. James Edwards

Supreme Court of Massachusetts

March 4, 1879

[Syllabus Material]

Norfolk. Tort for breaking and entering the plaintiff's close, situated on Granite Street in Quincy, on May 17, 1876 and on divers other days and times between that day and September 6, 1877, the date of the writ. The answer admitted the title of the plaintiff to the premises described in the declaration, alleged that the defendant's wife and the plaintiff were children of Lewis Bass, who in his lifetime owned the plaintiff's lot and a lot in the rear thereof both of which lots, on the death of Lewis Bass, came by inheritance equally to the plaintiff and the defendant's wife; that a partition was made between them, by which the front lot was assigned to the plaintiff and the rear lot to the defendant's wife; that Lewis Bass for more than thirty years before his death had used to pass from the rear lot over and across the front lot to Granite Street, and that a passageway was appurtenant to the rear lot over the front lot to Granite Street, for use in the convenient enjoyment, cultivation and care of said rear lot; and that the defendant, acting as the agent of his wife, passed by the said customary way over the front lot, in the necessary care and husbandry of the rear lot, doing no damage save the unavoidable injury of careful passage.

At the trial in the Superior Court, before Pitman, J., without a jury, the following facts appeared:

Lewis Bass, the father of the plaintiff and of the defendant's wife, owned a large tract of land on the easterly side of Granite Street in Quincy. In 1844, he conveyed a strip of land running through his estate to the Old Colony Railroad Corporation, by the terms of which the grantee was to build a road underneath the track at a convenient place. His land on Granite Street was thus separated from the land in the rear by the railroad; but was soon afterwards connected with it by a culvert under the railroad.

In 1871, Lewis Bass conveyed the southerly part of the rear land, it being separated from the remainder by a ditch, to his daughter, Mrs. Edwards, by a warranty deed in the usual form, but making no mention of any right of way.

In 1873, Lewis Bass died, and by his will devised a portion of his land on Granite Street to his widow, and the residue of his estate to the plaintiff and Mrs. Edwards in equal shares.

On April 22, 1874, the plaintiff and Mrs. Edwards made mutual deeds of release and quitclaim, by which the plaintiff conveyed to Mrs. Edwards the rear lot, lying easterly of the railroad and northerly of the lot conveyed to her by her father; and Mrs. Edwards conveyed the lots lying between the railroad and Granite Street to the plaintiff. Each of these deeds contained a covenant that the land conveyed was free from all incumbrances made or suffered by the grantor, and also a covenant of warranty against the lawful claims and demands of all persons claiming by, through or under the grantor; and made no mention of any right of way.

At the time of the first conveyance to Mrs. Edwards, the lot was surrounded by the land of other persons, her husband owning a large parcel of land on the east side of both of the rear lots which ran through to School Street.

While Lewis Bass owned both the rear lots, his mode of access to them was by a walled passageway, about one hundred and twenty-five feet long, leading from Granite Street over land devised by him to his widow, thence over land now owned by the plaintiff, and thence through the culvert to the lot last conveyed to Mrs. Edwards; and, after he conveyed the lot to Mrs. Edwards in 1871, he continued to go to the other lot in the same way. This way was indicated by the tracks of wheels.

During the lifetime of Lewis Bass, the defendant used the same way to cart manure from Granite Street to the lot conveyed to his wife, but also made and used a way to this lot over his own land.

The defendant contended that there was a right of way from the two rear lots to Granite Street over the plaintiff's land, coming out on Granite Street some distance from the walled passageway; and admitted that, as agent of his wife, he used this way in going to and coming from the rear lots, for the purpose of cultivating the land, during the time mentioned in the declaration.

The judge found: 1. That the way through the walled passageway was a way of necessity for the rear lots, and had been used as the only way to these lots from Granite Street for more than twenty years prior to the conveyance of the lot to Mrs Edwards by her father; and ruled that this established easement or method of...