O'brien v. Murphy
| Decision Date | 19 October 1905 |
| Citation | 189 Mass. 353,75 N.E. 700 |
| Parties | O'BRIEN v. MURPHY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E. A. McClintock and J. P. Kirby, for appellant.
J. R Callahan and T. B. O'Donnell, for appellee.
This is a bill in equity, brought in the superior court, praying for an injunction to restrain the defendant from wrongfully interfering with the plaintiff's use of her estate, and for general relief. Having been referred to a master, upon his report a decree was entered dismissing the bill, and the case is before us on the plaintiff's appeal. His findings of fact must be taken as conclusive, as the evidence is not reported, and the only question for our decision is whether the decree is consistent with them. East Tennessee Land Co. v. Leeson, 183 Mass. 37, 38, 66 N.E. 427.
The parties own contiguous estates fronting on a public street from which access to the rear land of each is over a private way used in common, but not defined by metes and bounds. From the nature of the title, it becomes important to first determine the proper location of this way, as the alleged wrongful use of the plaintiff's land by the defendant for this purpose is the principal foundation of the suit. Both estates, formerly owned by a common grantor, consisted of one tract, with two dwelling houses. In 1874 he made a division by conveying the easterly part, with the dwelling house, to the predecessor of the defendant, who has occupied the premises since he acquired title in 1896. In the deed of conveyance there was granted as appurtenant. '* * * the right of passage to and from over a strip of land sufficiently wide for all purposes of travel, with team or on foot, lying along the westerly side of the land above described, the same to be used in common with the grantor and those claiming under him for the purpose of entering upon the rear part of the lot above described.' Upon the findings appearing in the report as amended, and those subsequently made in response to objections filed by the parties when the draft report was submitted, but not embodied in the final report, as they should have been, the way of necessity passed between the dwelling houses of the respective parties. These buildings were 13 feet apart, and this space affords the only feasible means by which the land in the rear of either house could be reached. This narrow space, however, does not define the boundaries, but only the limits within which a way conveniently must be laid out. Johnson v. Kinnicutt, 2 Cush. 153.
Notwithstanding the plaintiff's contention that by the erection of fences running northerly along the division line, from a point 13 feet south of the intersection of this line with the line of the south wall of the defendant's house extended, and which had been maintained in substantially the same location for more than 20 years, she had acquired certain prescriptive rights over the land of the defendant, her claim is not sustained by the master. The rights of the parties are thus left as established by the grant. At the date of the deed the way used by the original grantor ran partly on land now owned by the defendant, and so continued to be used until 1887. In that year a division fence, which has since been maintained, was built on the line that ran north and south between the estates. Unless the plaintiff has a right to subject the defendant's land to a part of the easement, the physical location of the way on her land next to the westerly side of the fence must be deemed the true location. The language of the grant did not create, either by reservation or exception, an easement over the land conveyed for the benefit of the remaining land now owned by the plaintiff. There are no sufficient words to support an implied grant on the part of the grantee, or to indicate that the grantor retained this right as a part of his former estate, to be used in connection with the remainder. Wood v. Boyd, 145 Mass. 176, 13 N.E. 476; White v. N.Y. & New England Railroad Co., 156 Mass. 181, 30 N.E. 612; Haverhill Savings Bank v. Griffin, 184 Mass. 419, 68 N.E. 839. This division left to the grantor full access to the highway over the remaining land. There being no necessity for the use of any part of the granted premises, he could not, in derogation of his grant, claim an easement therein by implication, even to the extent of the use shown at the date of his deed. Carbrey v. Willis, 7 Allen, 364, 83 Am. Dec. 688; Randall v. McLaughlin, 10 Allen, 366; Buss v. Dyer, 125 Mass. 287, 291; New York & New England Railroad v. Railroad Commissioners, 162 Mass. 81, 83, 38 N.E. 27.
The 'right of passage' is described as placed along 'the westerly side of the land above described,' and is thus brought inside of the division line, as the grantee's land lay entirely to the east of this line. He indeed, says that it is 'to be used in common.' By this phrase he intended that, while the easement as such became appurtenant to the land conveyed, the right granted was not exclusive. Such construction, while it places the way wholly upon the plaintiff's land, does not define its boundaries, which, being left uncertain, are to be determined by resort to the purpose for which it was granted and the acts of those having the right of user. Bannon v. Angier, 2 Allen, 128. From the evidence before him, including a view of the premises, the master states that 'a way sufficient in length for the purpose of entering upon the rear part of the Murphy land, for all purposes of travel, with team or on foot, would extend upon the land...
To continue reading
Request your trial