Crocker v. Cotting

• Decision Date: 02 April 1902
• Citation: 181 Mass. 146,63 N.E. 402
• Parties: CROCKER et al. v. COTTING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 146

63 N.E. 402

CROCKER et al. v. COTTING et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1902

COUNSEL

Solomon Lincoln and Felix Rackemann, for petitioners.

Elihu G. Loomis, for trustees under will of Geo. S. Winslow.

Wm. L Putnam, for trustees Cotting and Welch.

OPINION

MORTON J.

This is a petition under St. 1889, c. 442, to determine the rights of the parties in a certain passageway. Questions in regard to the same way have already been before this court in 166 Mass 183, 44 N.E. 214, 38 L. R. A. 245; 170 Mass. 70, 48 N.E 1023, 39 L. R. A. 215, 64 Am. St. Rep. 278; and 173 Mass. 68, 53 N.E. 158. The principal question now is whether the passageway can be covered over. There is also a question whether the respondents Cotting and Welch have a right to use the passageway in connection with a rear lot belonging to them and adjoining their front lot and forming a part of the same original tract of land as that did. There is a further question in regard to the admission of evidence, which, however, in the view which we have taken of the case need not be considered. The case was heard by a single justice, and comes here on a report made by him, such decree to be entered as justice and equity require. There is a stipulation by the parties as to the height that the way may be covered over, if it should be finally held that it need not be kept open. From the report it appears that the way was originally a part of a tract of land belonging to the heirs of one David S. Townsend, bounded northerly by Boylston street, and westerly in part by Carver street, and in part by a lot on the corner of Boylston and Carver streets belonging to other parties. In 1840 the entire tract was laid out by the heirs according to a plan drawn by Alexander Wadsworth. The land on Boylston street was divided into five lots, each about 110 feet deep. The passageway in question extended at the outset along the rear of these lots, 136 feet from Carver street. At least, it did so as a matter of record grant. Subsequently, in October, 1842, the grantors of the two easternmost lots released their interest, and the scheme was changed in part, so that the way extended to the westerly line of the lot now belonging to the respondents Cotting and Welch,--a distance of 62 feet from Carver street. This was the situation at the time when the lots now belonging to the petitioners and to the respondents Winslow and Loomis were conveyed by the Townsend heirs in 1843, and the way has remained ever since as thus left. The petitioners own the lot on the corner of Boylston and Carver streets; but they do not derive their title to it from the Townsend heirs, and it may therefore be disregarded. The lots to which they derive title from the Townsend heirs are the westernmost of the Boylston street lots, on the northerly side of the passageway, and a lot abutting on Carver street, on the southerly side of the way. The deeds conveying those lots bounded them on the way. That of the Boylston street lot conveyed it with 'the right or passing and repassing in and over, and of draining under, the said passageway, in common with us, our heirs and assigns, and all others who may be entitled to said easements, and of repairing or replacing said drain when necessary, subject however to payment of a proportionate part of the expense of keeping in repair said passageway and drain.' The lot on the southerly side of the way was conveyed with similar rights. The respondents Winslow and Loomis own the Boylston street lot next easterly of that belonging to the petitioners. It also was bounded on the way, and was conveyed with similar rights in the way. The respondents Cotting and Welch own the lot next easterly of that belonging to Winslow and Loomis. It was not bounded on the way, but was conveyed with similar rights in the way. The presiding justice found that, 'The mesne conveyances to the petitioners and respondents have passed to them, respectively, all and the same rights and easements in the passageway originally granted to their respective predecessors in title, and by substantially the same words in the several deeds.' The Townsend heirs retained the fee in the passageway, and it has passed from them by mesne conveyances,--one-third to the petitioners, one-third to the respondents Cotting and Welch, and one-third to the respondents Winslow and Loomis. The Boylston street lots were all conveyed with building restrictions limiting the nearness to the street of the front lines of buildings that might be erected thereon, and down to about 1880 the buildings on them were used for first-class dwelling purposes only. In 1895, and since, they were and have been used for mercantile purposes. When the lot on the southerly side of the passageway was conveyed, there were dwelling houses on it fronting on Carver street. The northerly wall of one of these houses coincided with the southerly line of the way, and there were windows in the second, third, and fourth stories opening upon the passageway. These buildings were used as dwelling houses until 1895, when they were replaced by a building used for mercantile purposes, and for offices by the petitioners. Proceedings are pending in the probate court for a partition of the passageway.

The question is one of construction, of ascertaining the intention of the parties in creating the way, and of giving effect to that intention, if it can be done consistently with established rules of law. There is no rule that determines once and for all whether parties have or have not the right to build over a way. It would be possible to establish such a rule perhaps, but it has not been done. In some cases it has been held that a way could be built over. Atkins v. Bordman, 2 Metc. 457, 37 Am. Dec. 100; Gerrish v. Shattuck, 132 Mass. 235; Burnham v. Nevins, 144 Mass. 88, 10 N.E. 494, 59 Am. Rep. 61; Grafton v. Moir, 130 N.Y. 465, 29 N.E. 974, 27 Am. St. Rep. 533. In other cases it has been held that it could not. Schwoerer v. Association, 99 Mass. 285; Brooks v. Reynolds, 106 Mass. 31; Salisbury v. Andrews, 128 Mass. 336; Attorney General v. Williams, 140 Mass. 329, 2 N.E. 80, 3 N.E. 214, 54 Am. Rep. 468. In each case the question has been one of construction,--what the parties to 'the convention,' as Chief Justice Shaw termed it in Atkins v. Bordman, intended. It was so held in Atkins v. Bordman, supra, the leading case. In Gerrish v. Shattuck, supra, the opinion begins by saying that, 'The rights of the plaintiff depend upon the construction to be given to the reservation in the deed,' etc. And in Burnham v. Nevins, supra, it is said that, 'The extent of the easement claimed must be determined by the true construction of the grant or reservation, and by any circumstances surrounding the estate and the parties which have a legitimate tendency to show the intention of the parties.' Speaking generally, if a right of way is created, and nothing more appears from the deed, or the attendant...