Drew v. Wiswall

• Decision Date: 18 June 1903
• Parties: DREW v. WISWALL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 554

67 N.E. 666

DREW v. WISWALL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 18, 1903

COUNSEL

Albert

P. Worthen, for plaintiff.

John W Johnson, Stephen H. Tyng, and Albert F. Converse, for defendants.

OPINION

BRALEY J.

The exceptions do not disclose the reasons, if any, that were given by the defendants at the trial to support their request for the ruling made; but at the argument they relied on two propositions, only, which we consider in the order presented.

Under the declaration as finally amended, the plaintiff, in order to recover damages, must prove the purchase of and payment for the land, as well as the agreement by the defendants to construct the streets, and that, while he had built a house on the estate conveyed, the defendants had failed to perform their contract. An examination of the evidence fully recited in the exceptions fails to show any substantial variance, as matter of law, between these allegations and the proof offered to sustain them.

Neither is the contention sound that the suit was prematurely brought. By the terms of the contract, the parties clearly contemplated that as soon as the plaintiff built his house on the lots bought by him, and which were the only lots in the whole tract to be so improved, the defendants would then build the streets designated in the undertaking. The plaintiff had fully performed on his part all that he was called upon to do, and therefore was entitled to performance on the part of the defendants at the date of the writ. Nason v. Holt, 114 Mass. 541, 542, note.

As there must be a new trial, we deem it proper to consider briefly the other questions involved in the case, and to which reference was made in the argument of the plaintiff.

At the time the plaintiff took his title, he bought according to a plan that showed proposed streets running through the whole tract, and by two of which his estate was bounded. As between him and the defendants, who still retained title to all the remaining land, he had a right of way over and through that portion described as streets, at least to the extent of gaining access to the public ways. Parker v. Smith, 17 Mass. 413, 9 Am. Dec. 157; Fox v. Union Sugar Refinery, 109 Mass. 292. Manifestly it would be for his advantage, in the improvement of his property, to have the contemplated ways on which his lots abutted, and the connecting street, constructed as soon as possible after he had built his house. If the defendants agreed with him to have these proposed streets wrought and fitted for travel and failed to perform their promise, it was a breach by them of their contract, and the plaintiff would be entitled to damages. Carr v. Dooley, 119 Mass. 294; Durkin v. Cobleigh, 156 Mass. 108, 30 N.E. 474, 17 L. R. A 270, 32 Am. St. Rep. 436.

It is settled law that an easement of a right of way over the lands of another person can be created only by grant, or by prescription, which is founded on the fiction of a lost...