Darman v. Dunderdale
| Decision Date | 20 November 1972 |
| Citation | 289 N.E.2d 847,362 Mass. 633 |
| Parties | Edward DARMAN v. Louise DUNDERDALE, administratrix, et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Carl J. Young, Boston, for respondents.
Sidney Werlin, Boston (Richard M. Zinner, Boston, with him), for petitioner.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and KAPLAN, JJ.
This case arises from a Land Court decree entitling the petitioner Darman to register land situated in Weymouth, Massachusetts, under the provisions of G.L. c. 185, free from any alleged right of way claimed by the respondents. The respondents filed both an appeal from the decree and a substitute outline bill of exceptions. Since the respondents have briefed only questions raised by the outline bill, we have considered the exceptions and dismiss the appeal.
The respondents own land abutting the petitioner's property. At the Land Court hearing the respondents claimed an easement by prescription over the petitioner's property but the point is not argued in their brief to this court and consequently it must be considered waived. Fialkow v. DeVoe Motors, Inc., Mass., 270 N.E.2d 798. a In any event, there is ample evidence to support the trial judge's ruling that the respondents had not sustained their burden of proving that they had acquired a prescriptive easement.
The respondents argue that from the language of the deed to their predecessors in title it is clear that the grantor intended to convey easements over certain planned streets passing through the petitioner's land, thus affording the respondents access to a public way.
It appears that aportion of the petitioner's property and the whole of the respondents' property were part of a tract of land conveyed to the J. W. Wilbur Company, Inc. in 1918. The Wilbur Company subdivided the tract into 339 lots, and laid out several streets shown on two separate plans entitled 'Nash Corner Gardens' (Plan No. 1) and 'Plan No. 2 Nash Corner Gardens' (Plan No. 2). 1 Plan No. 1 dated September 30, 1918, includes the portion of the petitioner's property over which the respondents now claim easements. Plan No. 2 dated November 14, 1918, comprises the respondents' land. Both plans were recorded with the Norfolk registry of deeds, although it is not clear from the record whether they were recorded on the same day. 2
In 1926 the Wilbur Company conveyed the part of the land shown on Plan No. 1 now owned by the petitioner, and other property, to one Pascal Flint. The deed made reference to Nash Corner Gardens Plan No. 1 and to the lot numbers. The language of the deed to Flint conveyed the property
Subsequently, the town of Weymouth took Flint's part of the land designated on Plan No. 1 for unpaid taxes and in 1967 the petitioner acquired the property except for a road known as Rockway Avenue and portions taken by eminent domain for construction of Route 3.
It should be noted that nowhere in the deed to Flint is Plan No. 2 mentioned and the only reference to Plan No. 2 to be found on Plan No. 1 is noted at the southeasterly edge of the street map: 'J. W. Wilbur Co. Inc. Plan 2.'
The respondents also derive title from the Wilbur Company. By a deed dated 1932 the Wilbur Company conveyed to Antonio and Rosa DeMarco property referred to in the deed as 'Nash Corner Gardens No. 2.' The deed from the Wilbur Company to the Demarcos, the respondents' predecessors in title, granted
Nowhere in the deed to the DeMarcos is Plan No. 1 mentioned. Plan No. 2 of the Nash Corner Gardens hasseveral roads clearly indicated upon it. In the legend of Plan No. 2 appears the notation:
To the northwest of the boundary of Plan No. 2 appears the notation 'Plan #1.' No portion of Plan No. 1 appears on Plan No. 2 and no portion of Plan No. 2 appears on Plan No. 1. The two areas of land represented by Plan No. 1 and Plan No. 2 are contiguous and the lot numbers on the two plans run consecutively. The plans, however, bear different dates.
From these documentary facts the respondents argue that the common grantor intended to give them rights of way over all the roads as laid out on both plans. It is not disputed that the respondents have the right to pass over the streets as laid out on Plan No. 2.
The court below found that the 'conveyances of the two areas by J. Wilbur Company, Inc. did not give, either to the grantees or their successors, any rights to use the ways on the other grantee's land.' The respondents argue that this finding constitutes reversible error.
The petitioner urges that findings of fact as to the intention of the grantor are not to be reversed unless plainly wrong. But Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138 143, 78 N.E. 886, and Hurd v. General Elec. Co., 215 Mass. 358, 360, 102 N.E.444, make it quite clear that the 'plainly wrong' standard of appellate review is not applicable to cases where the evidence is wholly documentary. When an appellate court seeks to elicit the grantor's intention from the language of a deed exclusively, 'the appellate court stands in the same place as the judge who heard the case.' 215 Mass. at 360, 102 N.E. at 444. The record does not indicate whether the Land Court's finding of the grantor's intent was based solely on the documentary evidence presented or whether it was based in part on oral testimony concerning the circumstances surrounding the execution of the deeds. If the Land Court judge reached his view of the grantor's intention solely from the documentary evidence, this court has the same interpretive powers as the Land Court judge.
The respondents, in effect, ask us to interpret Plan No. 1 as an integral part of their deed because their deed mentions Plan No. 2, and Plan No. 2 has a reference in the legend to Plan No. 1. Prentiss v. Gloucester, 236 Mass. 36, 127 N.E. 796, would appear to reject such an interpretation. The court there refused to read references in deeds to sectional plans which were part of a larger index plan as references to the whole of the index plan. Citing Regan v. Boston Gas Light Co., 137 Mass. 37, and Pearson v. Allen, 151 Mass. 79, 23 N.E. 731, the court made it clear that 'a reference to a plan in a deed . . . does not result in the conveyance of rights not necessary for the enjoyment of the premises, in the absence of an intent appearing to that effect . . ..' 236 Mass. at 52, 127 N.E. at 799. In the absence of a clear indication that the original grantor intended to convey to the respondents' predecessors in title rights in all the ways on Plan No. 1, we cannot now rule that the respondents possess such easements.
The respondents' deed specifically refers to Plan No. 2. There is no reference in the deed to Plan No. 1. From the documentary evidence presented we think that a mere notation referring to Plan No. 1 in the legend of Plan No. 2 is not a clear enough indication that the grantor intended to give the grantees of land shown on Plan No. 2 easements over all the roads shown on Plan No. 1.
In interpreting the grantor's intent from a deed the trial court is permitted to take into account 'material circumstances and pertinent facts known to . . . (the parties) at the time . . . (of execution).' Bessey v. Ollman, 242 Mass. 89, 91, 136 N.E. 176, 177. The respondents argue that to construe their deed not to incorporate a grant of rights of way over the roads shown on Plan No. 1 would be to imply that the grantor intended the respondents' property to be landlocked, without access to a public highway. We cannot agree. In 1957 the Commonwealth took a portion of the respondents' land and a part of a street laid out on Plan No. 1 known as Pleasant Valley Road. The Land Court judge heard testimony that prior to the 1957 taking by the Commonwealth wealth there was access to the respondents' land from a public way via gravel tracks conforming with the layout of Pleasant Valley Road as shown on Plan No. 1. Such testimony may well have led to the judge's decision that the two plans were not merged. If the deed was interpreted in light of such testimony we cannot say that the judge was plainly wrong. Of course, any lack of access to the respondents' property after the 1957 taking does not serve retroactively as proof of the grantor's intention to afford access to the property at the time of the execution of the deed to the DeMarcos in 1932. 3
Since there was ample evidence that there was a means of access to the respondents' property in 1932, the respondents cannot claim that construing Plan No. 1 as an integral part of the DeMarcos' deed is necessary to prevent a finding that the grantor intended the property to be landlocked.
It is not at all certain whether the Wilbur Company could...
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