Dunham v. Dodge

• Decision Date: 31 March 1920
• Citation: 235 Mass. 367,126 N.E. 663
• Parties: DUNHAM v. DODGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 367

126 N.E. 663

DUNHAM

v.DODGE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1920.

Appeal from Superior Court, Suffolk County; Jabez Fox, Judge.

Suit by Helen M. Dunham against Frederick A. Dodge and others. From an adverse decree, defendant Dodge appeals. Affirmed.Sidney Perley, of Salem, and Alfred E. Lunt, of Boston, for appellant.

Phipps, Durgin & Cook and Edward E. Gordon, all of Boston, for appellee.

CROSBY, J.

By deed dated August 13, 1887, Andrew Dodge (father of the defendant Frederick A. Dodge) conveyed to Charles K. Ober a portion of his farm comprising the tracts now belonging to the plaintiff and the defendants Lunt, with a frontage of 133 feet on Dodge street in Beverly ‘together with a right of way to pass and repass from said granted premises over my own land on the westerly side thereof.’ The parties to this conveyance erected a fence along the boundary line between their respective tracts. In the year 1888 Ober conveyed to one Carr a lot 89 feet deep and having a frontage of 120 feet on Dodge street ‘together with an open right of way over my strip of land adjoining lot conveyed in this deed to the west, and including also a right of way over land of Andrew Dodge on the west of the before mentioned strip of land belonging to me.’ The land so conveyed by Ober to Carr is now owned by the plaintiff. The defendant Dodge is the owner of the remainder of the farm not conveyed as above described by Andrew Dodge to Ober.

The land of the plaintiff has been duly registered by decree of the land court, dated May 16, 1919, which recites that

‘There is appurtenant to the above described land an open right of way to pass and repass for all purposes between the above described land and Doge street over a strip of land marked ‘Mildred K. Lunt’ shown as a right of way on said plan, in common with others entitled thereto; and also a right of way over land now or formerly of Frederick A. Dodge et al., as shown on said plan, as described in a deed given by Andrew Dodge to Charles K. Ober, dated August 13, 1887, duly recorded, * * * in common with others entitled thereto.'

It thus appears that there is appurtenant to the land of the plaintiff an open right of way 13 feet wide, over land of Mildred K. Lunt adjoining the plaintiff's land on the westerly side thereof, which runs from Dodge street in a southerly direction past the plaintiff's land; and also a right of way over land of the defendant Dodge adjoining and westerly of the way over the land of Mildred K. Lunt. Running through the Dodge farm to the south from Dodge street is an elevation sometimes called Indian Ridge over which runs the Dodge lane; this land was used by the owners of the Dodge farm as a cow lane, and cart ruts are visible on the surface of the ground; there is a stone wall on the westerly side and a fence along the easterly boundary; the land slopes abruptly away from the ridge, along the top of which is the traveled part of the lane. When Dodge street was relocated about the year 1875 it was about 6 feet below the level of the lane and the latter was leveled off, making it accessible from the street.

The bill as to the defendants Lunt having been ordered dismissed, the case is before us on appeal from the final decree of the defendant Frederick A. Dodge. No question is raised as to the right of the plaintiff to pass over the cow lane, so called, on the Dodge land to a point nearly opposite the southwest corner of her own land, and across the 13-foot strip to her own land; the only issue being as to the width of the opening in the boundary fence between land of Dodge and Lunt. The defendant Dodge has erected a barway in the fence with two posts set 10.18 feet apart, which he contends is a reasonable width, to be used by the plaintiff in the exercise of the easement. He has deposited three large rocks along the boundary line close to the northerly bar post and also has set a row of posts in the ground across the cow lane at a point about opposite the southerly bar post; these obstructions prevent large automobile trucks from using an opening greater than 10.18 feet wide in passing to and from the plaintiff's land.

The plaintiff contended and offered evidence to show that the narrowness of the barway makes it impossible for large coal trucks to pass to and from her premises over the right of way, and that an opening at least 15 feet in width is necessary for a reasonable use of the way. The width of the right of way over the Dodge land is not described in the deed creating it, nor is it defined in the decree of the land court. It is settled, however, that where a right of way is granted without fixing its location but there is a way already located at the time of the grant, such way is held to be the location of the way granted. O'Brien v. Schayer, 124 Mass. 211;Gerrish v. Shattuck, 128 Mass. 571. If the grant creating a right of way does not define its location, the owners of the dominant and servient estates may expressly agree upon such location or by conduct may be found to have impliedly agreed to the location. The plaintiff built a...