Cummings v. Franco

• Decision Date: 04 April 1957
• Citation: 141 N.E.2d 514,335 Mass. 639
• Parties: Frank J. CUMMINGS et al. v. Maria D. FRANCO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 514

141 N.E.2d 514

335 Mass. 639

Frank J. CUMMINGS et al. v. Maria D. FRANCO.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 29, 1956.

Decided April 4, 1957.

Thomas F. McGuire, Fall River, Preston H. Hood, Jr., Fall River, for plaintiffs.

Philip Goltz, Fall River, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS, and WHITTEMORE, JJ.

WILLIAMS, Justice.

This is a suit in equity to enjoin the interference by the defendant with the exercise of rights in the nature of easements appurtenant to the plaintiffs' land in the adjoining land of the defendant. The facts are reported by a master whose report has been confirmed. Both the plaintiffs' and the defendant's lands were formerly part of a single tract owned by Thomas W. Smith and Alice R. Smith, husband and wife. The tract extended from Riverside Avenue, a public highway in the town of Somerset, on the west to the Taunton River on the east. It was conveyed to the Smiths on November 20, 1913. About 1925 the Smiths who lived in a house on the front or westerly part of the property built a second house on the rear portion which abutted on the Taunton River, and a garage with driveway from Riverside Avenue. The town supplied water to the front house from a main on Riverside Avenue. When the rear house was built the Smiths continued the water pipes from the cellar of the front house to the rear house. The water supplied for both houses was measured by a meter in the cellar of the front house. Telephone and electric light wires which came in from Riverside Avenue were carried to the rear house by way of the front house to which they were attached. In July or August, 1944, a second water meter was installed in the cellar of the front house and thereafter the water supply for the rear house ran through the new meter and only the water for the front house was registered on the old meter. On August 17, 1944, the situation as to the water pipes and utility wires being as described, Mrs. Smith, who had become sole owner of the property after her husband's death on October 9, 1938, conveyed the easterly or rear portion of her land which bordered on the river to the plaintiffs, husband and wife, as joint tenants. Her deed recited that the conveyance was made 'Together with the right to use the driveway as it now stands to pass to and from the above described premises by vehicles or otherwise over land of the grantor to Riverside Avenue,' and 'with and subject to water privileges mentioned' in the deed of Phoebe A. Davenport et al. to Thomas W. Smith and Alice R. Smith dated November 20, 1913, by which the Smiths had derived their title. The westerly line of the premises conveyed to the plaintiffs ran through the garage above mentioned, which was 'partitioned off in accordance with the deeds [sic].' On September 1, 1944, Mrs. Smith sold the front parcel to one Evelyn Dawn subject to the right of way described in the prior deed to the plaintiffs and 'with and subject to water privileges mentioned' in the deed of November 20, 1913, from Davenport et al. to the Smiths. Evelyn Dawn continued to own the front parcel from September 1, 1944, until July 18, 1952, when she sold it to the defendant subject to the said water privileges.

The plaintiffs assert rights to the maintenance and use of the water pipes and wires leading to their house over the defendant's land as they existed at the time they purchased the property from Mrs. Smith. The defendant denies the existence of any easement and by way of counterclaim contends that her 'water privilege' includes the right to pass over the plaintiffs' land to the Taunton River. The master found that the defendant has no right to pass over the plaintiffs' land to the river and that the 'water privilege' to which the deeds referred was a right granted in 1896 to the owners of land south of the Smith tract to draw water from a well on the northerly boundary of the tract, which well is not now in use.

There is no present dispute over the right of way from Riverside Avenue to the plaintiffs' land nor in respect to the maintenance of telephone wires, as they are no longer attached to the front house but are carried to the rear house by means of a pole located on land of a third party, immediately south of the plaintiffs' land.

The principal controversy is over the water pipes and electric wires. The master found 'from the facts and circumstances surrounding the splitting up of the property,' and without reliance on the testimony of Mrs. Smith, that when she 'divided the land in 1944, she intended that the Cummings' [plaintiffs'] land should have the right to the use of the utilities as they then were * * * that the situation, as then made, should continue,' and that 'owing to the physical structure and location of the land * * * [she] installed these utilities in her front land for the use and benefit of the rear part of her land.' He found that 'all parties to the arrangement, Mrs. Smith, Evelyn Dawn and the Cummings, knew and understood' Mrs. Smith's intent to benefit the rear house; that 'the present conditions existed all during the nearly eight years occupancy by Evelyn Dawn, with her full knowledge and approval, and during the nearly three years occupancy of the defendant, without any official action or protest...