Clarkin v. Duggan

• Decision Date: 31 October 1935
• Citation: 292 Mass. 263,198 N.E. 170
• Parties: CLARKIN et al. v. DUGGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 263

198 N.E. 170

CLARKIN et al. v. DUGGAN.

Supreme Judicial Court of Massachusetts, Worcester.

October 31, 1935

Suit in equity by John A. Clarkin and others against James Duggan. From a final decree for the plaintiffs, the defendant appeals.

Decree affirmed.

Appeal from Superior Court, Worcester County; Williams, judge.

F. P Brady, of Uxbridge, for appellant.

H. H Hartwell, C. N. Dewey, M. B. Fitz, and R. W. Lewis, all of Worcester, for appellees.

CROSBY, Justice.

This is a bill in equity by which the plaintiffs seek to enjoin the defendant from trespassing upon their land. The case was referred to a master who found the following facts: The plaintiffs own certain real estate in the town of Blackstone located on the westerly side of Blackstone Street, which runs in a northerly direction from Blackstone to Mendon. The defendant is the owner of real estate on the same side of the same street, southerly from the plaintiffs' property but separated from it by two intervening lots on which there are houses. All these lots originally were owned by Albert Gaskill, a common grantor of the plaintiffs and the defendant. The plaintiffs' house was formerly the home of Gaskill, and is located near the westerly line of the street. The lot falls off sharply from the street to the west so that the kitchen of the house is not on a level with the first floor, but is in a basement. A barn used as a garage is located about twenty-five feet westerly of the house. On the north side of the house is a fairly steep driveway which runs from Blackstone Street along the north side of the house, then turns at right angles, runs between the house and barn and continues southerly in the rear of the adjoining properties, including that of the defendant. Although the ground of these adjoining properties is rough and uneven it gives to the defendant access to the rear of his land by horse-drawn vehicles or automobiles. The source of the right which the defendant has over the land of the plaintiffs is contained in a deed from Albert Gaskill. Gaskill conveyed the land southerly of what is now the plaintiffs' property and now owned in part by the defendant to one Susan Gaskill by deed dated May 4, 1864, and recorded in the Worcester district deeds, book 689, page 34 which contained the following clause: ‘ And with the right of way across my land (with teams only) from said road on the North side of my dwelling house occupied by me between my said house and barn to said premises, it being the usual way of passing on to said premises for the necessary use and management of said premises.’ The defendant's immediate predecessor in title, Andrew J. Duggan, took title by deed from one Charles F. Dorrington dated July 29, 1904 and duly recorded, which contained the following clause: ‘ With the right to pass and repass over adjoining land now or formerly of Ellen Fanning, Jane and Simon Ryan and heirs of Hugh Clarkin to convey fuel and manure and other material to plant garden.’ The defendant took title to the property now owned by him by deed from Andrew J. Duggan dated November 25, 1911, and duly recorded, which contained the following clause: ‘ With the right to pass and repass over adjoining land now or formerly of Ellen Fanning, Jane and Simon...