Desotell v. Szczygiel
| Decision Date | 03 December 1958 |
| Citation | 338 Mass. 153,154 N.E.2d 698 |
| Parties | Anna E. DESOTELL et al. v. Katarzyna SZCZYGIEL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John P. Schlosstein, Warren, for defendant.
Jacob J. Butler, Joseph Swirsky, Springfield, for plaintiffs.
Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.
Fred G. and Lily I. Harding are the owners of the lot appearing on the upper or north portion of the plan reproduced below. Anna E. Desotell is the owner of the lot to the south of and contiguous to the Hardings' property. South of Desotell's lot is the property of Katarzyna Szczygiel, the defendant. The Hardings and Desotell brought this suit to have the defendant enjoined from obstructing the way on her land shown on the plan over which the plaintiffs assert a right of passage.
A master to whom the case was referred found these facts. On February 11, 1884, title to the properties now owned by the plaintiffs and the defendant was in one Taft. Each deed in the chain of title of the Hardings conveyed the property 'together with all rights of way to School Street and other rights appurtenant' to said premises, but the location and boundaries of the right of way were not specified in any of the deeds.
However, the deed, dated December 11, 1909, from the original grantor, Taft, in the chain of title of the property owned by Desotell described the easement granted as follows: 1 Each conveyance of the Desotell property thereafter contained an identical description of the right of way. On the same day (December 11, 1909) that Taft made the original conveyance in Desotell's chain of title he conveyed the land now owned by the defendant to one Wallace. 2 The deed excepted and reserved a 'right of way 10 feet in width and 86 feet in length measured westerly from the easterly line of said premises as described in the deed to [the first grantee of the land owned by Desotell].' There was also reserved and excepted 'a right of way described in deed of Taft to [the first grantee of the land owned by the Hardings].' The same description of the land and rights of way is contained in all subsequent deeds, including the deed conveying the property to the defendant on May 21, 1937. On the same date the defendant gave a mortgage to the Palmer Savings Bank. This mortgage contained the same description, reservations and exceptions set forth in all the prior deeds.
For a continuous period from 1905 to 1938 there were located on that portion of the right of way running across the defendant's land as shown on the plan trees, including a large elm, a large boulder, and bushes. A dump was also located on the right of way during this period, and the way could not be used for vehicular traffic, and no use was made of it for foot travel.
In 1938 the defendant cleared the area within the boundaries of the right of way over her land, and constructed a gravel road thereon.
In 1939 one Meyer, the then owner of the Desotell property, began to use the road several times a week, the defendant making no objection to this use. In November, 1942, the Desotells used this road to bring in their belongings, and from that time until September, 1952, subjected the road to continuous use. After 1952 this use ceased because objected to by the defendant.
In October, 1946, the Hardings used the road to move in their furniture, and continued to use the road thereafter until 1952, although less frequently than the Desotells.
The master concluded that 'the right of way over the defendant's property mentioned in the defendant's and Desotell's chain of title as being eighty-six feet long and ten feet wide is correctly located on the plan.' He found, however, that the Hardings had failed to sustain their burden of proving a right of way over the Desotell property. 3
An interlocutory decree was entered confirming the master's report and overruling the defendant's exceptions. The final decree adjudged that the defendant's land was subject to a right of way, as located on the plan, in favor of the Hardings and Desotell; the decree also permanently enjoined the defendant from obstructing or interfering with its use by the plaintiffs. The defendant's counterclaim setting up extinguishment of the easement by adverse possession was dismissed. The defendant appealed.
There was no error.
1. The defendant's first contention is that there were no facts found by the master which support the conclusion that the Hardings have a right of way in the strip shown on the plan. It is not contended that the location of the easement in favor of the Desotell land was not adequately described in the deed given by Taft, the original grantor, and was not correctly located on the plan.
It is true that the deed given by Taft in 1884 to the predecessors in title of the Hardings does not fix the location of the right of way granted to them. However, the deeds given by Taft in 1909 to what is now the Desotell property and what is now the defendant's property, after setting out the location of the right of way shown on the plan, both except and reserve the right of way created in favor of the Harding property and refer to the deed of that property given by the grantor in 1884. It should not be readily inferred that the grantor's intent was to subject the servient estate to two separate and distinct rights of way. We think that the master's conclusion that the right of way created in favor of the Harding property has the same location as that created in favor of the Desotell property was correct.
Even if evidence of the intent of the original grantor and grantee is insufficient, the location of a right of way may be fixed or changed by the parties. 'An undefined right of way by grant may be located by the parties, and a way once located may be changed by them.' Brooks v. Quinn, 266 Mass. 132, 137, 164 N.E. 822, 824. See Anderson...
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