Dale v. Bedal
| Decision Date | 31 January 1940 |
| Citation | 25 N.E.2d 175,305 Mass. 102 |
| Parties | DALE v. BEDAL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Action by Mary B. Dale against Susan Dreas Bedal to establish a right by necessity to maintain and use for the reception of sewage an underground receptacle located on defendant's land. From an adverse decree, plaintiff appeals.
Affirmed.Appeal from Superior Court, Essex County; Hurley, Judge.
F. X. Hurley, of Boston, for plaintiff.
J. M. Fogarty, of Lynn, for defendant.
The plaintiff and the defendant are respectively the owners of the houses upon adjoining lots situated on ‘Goodwin's Court’ in Marblehead. This suit is now prosecuted solely to establish the plaintiff's ‘right by necessity’ to maintain and use for the reception of sewage from her house an underground receptacle or ‘septic tank’ located on the defendant's lot.
In 1928, Mary E. Brown, the mother of the plaintiff, owned both houses. The tank and connecting pipes were then in existence. In that year Mrs. Brown conveyed to the defendant the house and lot now owned by the latter. In the deed Mrs. Brown expressly reserved a right of way and a right to maintain awnings over the granted premises, but nothing was said about a ‘septic tank.’ Since 1928, the plaintiff has inherited her house from Mrs. Brown. The plaintiff now contends that there was in the deed from Mrs. Brown to the defendant an implied reservation of an easement for the continued use of the tank as necessary to the occupationof the house now belonging to the plaintiff.
Findings of the master show that, owing to the small size of the plaintiff's lot, its location upon a ledge, the rocky character of ‘Goodwin's Court,’ and the refusal of the town to build a sewer there, the plaintiff has no means of disposing of sewage except through the ‘septic tank.’ For the purposes of this decision only, we assume that the findings are adequate to establish that the tank is necessary to the enjoyment of the plaintiff's house.
There may be an easement of drainage by necessity, as there may be an easement of way by necessity. Johnson v. Jordan, 2 Metc. 234, 240,37 Am.Dec. 85;Carbrey v. Willis, 7 Allen, 364, 368, 83 Am.Dec. 688. See Buss v. Dyer, 125 Mass. 287, 291. But implied easements, whether by grant or by reservation, do not arise out of necessity alone. Their origin must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable. Nichols v. Luce, 24 Pick. 102,35 Am.Dec. 302;Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 411, 97 N.E. 54, 38 L.R.A.,N.S., 882; Orpin v. Morrison, 230 Mass. 529, 533, 120 N.E. 183;Home Investment Co. v. Iovieno, 243 Mass. 121, 124, 137 N.E. 382;Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 104, 187 N.E. 227. And the rule that a deed is to be construed most strongly against the grantor may render it more difficult to imply an easement by reservation for the grantor's benefit than an easement by grant for the grantee's benefit. Salisbury v. Andrews, 19 Pick. 250, 253;Johnson v. Jordan, 2 Metc. 234, 240,37 Am.Dec. 85. In this aspect of the case further findings of the master become material and decisive. When the defendant purchased her premises in 1928, neither the tank nor its accessory pipes were visible. The defendant had no way of knowing that sewage was coming from Mrs. Brown's remaining house onto the land which the defendant was buying, unless Mrs. Brown told her, and Mrs. Brown did not tell her. The defendant had no knowledge that Mrs. Brown's house (now the plaintiff's) was draining into the defendant's premises until 1938, when the tank began to overflow and the sewage began to saturate the soil. Mrs. Brown, however, knew of the existence of the tank and was ‘well aware of the services necessary for the enjoyment of...
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Kitras v. Town of Aquinnah
...known to the parties of the conveyance, the language of the instrument, and the physical condition of the land. Dale v. Bedal, 305 Mass. 102, 103, 25 N.E.2d 175 (1940) ; Davis, 254 Mass. at 545, 151 N.E. 291 ; Orpin, supra at 533, 120 N.E. 183. 5. Discussion. The Land Court judge assumed th......
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Van Szyman v. Town of Auburn
...492; Cummings v. Franco, 335 Mass. 639, 141 N.E.2d 514. See Perodeau v. O'Connor, 336 Mass. 472, 146 N.E.2d 512. Compare Dale v. Bedal, 305 Mass. 102, 25 N.E.2d 175. The plaintiffs, admitting an easement by implication, do not contend that their lack of knowledge of the drain when they boug......
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Kitras v. Town of Aquinnah, 04-P-472.
...intent to reserve easements, for example, the nature and then-perceived poor quality of the land so divided. See Dale v. Bedal, 305 Mass. 102, 103, 25 N.E.2d 175 (1940) (circumstances to be considered include "the physical condition of the premises"). Without belaboring the point, it seems ......
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Boudreau v. Coleman
...or with which they are chargeable." Perodeau v. O'Connor, 336 Mass. 472, 474, 146 N.E.2d 512 (1957), quoting from Dale v. Bedal, 305 Mass. 102, 103, 25 N.E.2d 175 (1940). See Bacon v. Onset Bay Grove Assn., 241 Mass. 417, 423, 136 N.E. 813 (1922); Mt. Holyoke Realty Corp. v. Holyoke Realty ......