Casella v. Sneirson
| Decision Date | 05 December 1949 |
| Citation | 325 Mass. 85,89 N.E.2d 8 |
| Parties | CASELLA v. SNEIRSON et al. [ *] |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued Oct. 4 1949.
J C. Collins, Waltham, for plaintiff.
P. S. Belson Boston (J. M. Esterkes, Boston, with him), for defendants.
Before QUA, RONAN WILKINS, SPALDING and COUNIHAN, JJ.
The plaintiff brings this bill in equity to restrain the defendants from erecting a garage on land over which the plaintiff claims to have a right of way. The evidence is reported and the judge made a report of the material facts found by him.
The pertinent facts may be summarized as follows: The plaintiff is the owner of a lot of land in Waltham on which there is a dwelling. The defendants own land which adjoints the plaintiffs lot to the west and to the north and is designated as lot 'B' on the plan set forth below. The defendants' lot is bounded on the north by a narrow strip of land owned by the Commonwealth which runs to the Charles River. The southern boundaries of both lots form a continuous line. Wall Street lies to the south of the lots and adjoins them so that its easterly boundary if extended coincides with the westerly boundary of the plaintiff's lot, forming a line perpendicular to the southern boundary of the lots. Wall street is a private way thirty-three feet wide and is paved up to the point where it adjoins the land of the plaintiff and the defendants. Beyond the point where the pavement ends 'no way had been laid out, the land being rough and uncultivated and having thereon grass and stones.'
Both parcels of land involved in this litigation were at one time owned by one Wood. In 1922 what is now the plaintiff's lot was conveyed to one Durkiwicz by a deed which referred to the property as 'land in Waltham situated on the easterly side of Wall Street, a private way.' That part of the description contained in the deed to Durkiwicz here pertinent reads: 'Beginning at the southwesterly corner of the granted premises at a point in the easterly line of said Wall Street at land of Hughes; thence running northerly on the easterly line of said Wall Street one hundred eight (108) feet more or less to a point * * *.' In 1924 Durkiwicz conveyed the premises to the plaintiff by a deed describing the property in the same words as those just quoted. In August, 1948, Wood conveyed the land comprising lots 'A' and 'B' on the above mentioned plan [1] to Albany R. and Joseph G. Savoy, the defendants' predecessors in title. In October, 1948, the defendants acquired lot B from the Savoys.
In November, 1948, the defendants commenced the erection of a garage. The site of the proposed garage is twelve feet from the west line of the plaintiff's lot and fifty feet back from Wall Street. The plaintiff contends that she has a right of way over the strip of property to the west of her land corresponding to a northerly extension of Wall Street and that this way is not only coextensive with her property but extends on northerly down to the river. If only the first part of the plaintiff's contention is correct, then, obviously, the proposed garage would interfere with the plaintiff's right of passage over the way, for it would be located on a continuation of Wall Street at a point opposite the plaintiff's land. The judge concluded that the oral and documentary evidence did not warrant a finding or ruling that any way was created by grant, and that if there was an attempt to create one it was 'too indefinite and uncertain to establish any rights thereunder.' He found, however, that the plaintiff had a right 'both by prescription and by necessity' to pass over land of the defendants along her western boundary from Wall Street to a point opposite the northerly line of her residence. This way, which the Judge found to be twenty feet wide and forty feet in lengh, did not embrace the area where the defendants' garage was to be built. A decree was entered accordingly, from which the plaintiff appealed.
Whether the plaintiff acquired a right of way by grant depends on the effect of the deed from Wood to Durkiwicz, her predecessor in title. [2] The significant words in that deed are the following: 'Beginning at the southwesterly corner of the granted premises at a point in the easterly line of said Wall Street at land of Hughes; thence running northerly on the easterly line of said Wall Street one hundred eight (108) feet more or less to a point' (emphasis supplied). The plaintiff rightly does not contend that she acquired the fee in any part of the way. It is to be noted that the description here does not bound the property 'on' or 'by' Wall Street. Ordinarily a deed which bounds the premises 'on' or 'by' a way with no restricting or controlling words conveys title to the middle of the way if the way belongs to the grantor. Gray v. Kelley, 194 Mass. 533, 536-537 80 N.E. 651; Pinkerton v. Inhabitants of Randolph, 200 Mass. 24, 26-27, 85 N.E. 892; Salem v. Salem Gas Light Co., 241 Mass. 438, 441, 135 N.E. 573; Erickson v. Ames, 264 Mass. 436, 442-445, 163 N.E. 70. But the rule is otherwise where the deed describes the boundary as being 'on' or 'by' the side line of a way. Such a description ordinarily indicates that the grantor did not intend to part with title to any portion of the way. Smith v. Slocomb, 9 Gray, 36, 69 Am.Dec. 274; Holmes v. Turner's Falls Co., 142 Mass. 590, 592, 8 N.E. 646; McKenzie v. Gleason, 184 Mass. 452, 458, 69 N.E. 1076, 100 Am.St.Rep. 566; Hamlin v. Attorney General, 195 Mass. 309, 312, 81 N.E. 275; Wood v. Culhane, 265 Mass. 555, 557, 164 N.E. 622. The description in the deed under consideration belongs to this class. Thus Wood's grantee, Durkiwicz, did not acquire a fee to the center of the way and, of course, the plaintiff, whose title stems from Durkiwicz acquired no better right.
The question remains whether the deed to Durkiwicz, although it conveyed no fee in any part of the way, created an easement of way. The plaintiff invokes the familiar rule that, when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed. Tobey v. City of Taunton, 119 Mass. 404, 410; Ralph v. Clifford, 224 Mass. 58, 60, 112 N.E. 482; Oldfield v. Smith, 304 Mass. 590, 595-596, 24 N.E.2d 544; Frawley v. Forrest, 310 Mass. 446, 451, 38 N.E.2d 631, 138 A.L.R. 999; Daviau v. Betourney, 325 Mass. 1, 88 N.E.2d 541.
Although there is some authority to the contrary, see McKenzie v. Gleason, 184 Mass. 452, 458-459, 69 N.E. 1076, 100 Am.St.Rep. 566; Wood v. Culhane, 265 Mass. 555, 558-559, 164 N.E. 622, we think it must be regarded as settled in this Commonwealth that a description which bounds property by the side line of a way is no less effective to give the grantee an easement in the way, under the principle just stated, than a description which bounds the property by or on a way. Gaw v. Hughes, 111 Mass. 296; Cole v. Hadley, 162 Mass. 579, 39 N.E. 279; Driscoll v. Smith, 184 Mass. 221, 68 N.E. 210; Hill v. Taylor, 296 Mass. 107, 116, 4 N.E.2d 1008. Thus had Wall Street been in existence along the westerly boundary of the plaintiff's lot at the time of the conveyance to Durkiwicz there could be no doubt, under the decisions just cited, that he and those claiming under him would have acquired an easement of way over it. That Wall Street was not then in existence would not necessarily preclude the creation of such an easement. Lemay v. Furtado, 182 Mass. 280, 65 N.E. 395. The estoppel of the grantor to deny the existence of the way 'applies as well to a contemplated way if clearly indicated as to an existing street.' Ralph v. Clifford, 224 Mass....
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