Crosier v. Shack

• Decision Date: 27 January 1913
• Citation: 213 Mass. 253,100 N.E. 607
• Parties: CROSIER v. SHACK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 253

100 N.E. 607

CROSIER v. SHACK.

Supreme Judicial Court of Massachusetts, Franklin.

January 27, 1913

COUNSEL

Frank J. Lawler, of Greenfield, for petitioner.

William A. Davenport, of Greenfield, for defendant.

OPINION

MORTON J.

The plaintiff and the defendant own adjoining premises on the southerly side of Goose Lane, so called, a public street in the village of Shelburne Falls in the town of Shelburne. The defendant's premises are bounded on the west by the plaintiff's, and the plaintiff's on the west by Main street, one of the principal streets in the village. Both the plaintiff and defendant derive title from a common grantor. The deeds were executed and delivered in 1904, the plaintiff's on April 25th, and the defendant's on July 1st. The deed to the plaintiff contains the following grant of a right of way to the plaintiff over the premises now belonging to the defendant: 'Also the necessary use of a private right of way from said Goose Lane as now used across our premises on the east and south sides of said house to the within granted premises.' The deed to the defendant contained the following exception of the right of way thus granted: 'Excepting the right of way on the east and south sides of the house on the granted premises, as now used by and recently deeded to O. R. Crosier.' This is a bill in equity to restrain the defendant from obstructing the plaintiff in the use of the way thus granted. The case was sent to a master and on the coming in of his report a decree ^[1] was entered from which both parties appealed.

On the premises belonging to the plaintiff is a dwelling house occupied by him and fronting on Main street. Connected with the dwelling house and fronting on Goose Lane is a building which has been used by the plaintiff as a paint shop. Near the southeast corner of his premises is a barn. There is a dwelling house on the defendant's premises occupied by him and fronting on Goose Lane. Attached to the dwelling house are a woodshed and a small outbuilding. The entire tract of land owned by both parties is practically level, and both Goose Lane and Main street are practically on a level with the premises all the way round. It is practicable to go directly east on the plaintiff's premises from Main street to the barn. During the past two years the plaintiff has been using the barn as a place for keeping his automobile. The master finds that: 'Prior to 1904 these premises entire had for a very long term of years been owned by the same person, and rented in part and used together as one property. During all this time access to the inside yard for the delivery of wood, coal, groceries and other things necessary and convenient for the use of the property by truck teams or otherwise, had been gained by entering upon the premises near the easterly end, from off Goose Lane,' along the right of way in question, 'while certain goods and articles of merchandise had been put into the buildings along Goose Lane directly from the lane.' The master further finds that the plaintiff 'leased and occupied the premises he now owns for 12 or 15 years or more prior to the time of his purchase, and that during a part or all of said time, and since he has become the owner, he has run his paint cart in and our over this way, and since he has become the owner he has carried long ladders over the way upon this paint cart; but it did not appear whether he had or had not done so prior to his purchase. The way has not been used for the passage of automobiles until within about 2 years last past.' The defendant objected to the use of the way by the plaintiff for an automobile and a paint cart but not for 'other purposes incident to the use of his property for ordinary family and household purposes.' The master finds, 'if it is...