Durkin v. Cobleigh

• Decision Date: 27 February 1892
• Citation: 156 Mass. 108,30 N.E. 474
• Parties: DURKIN v. COBLEIGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 108

30 N.E. 474

DURKIN v. COBLEIGH.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1892

COUNSEL

F.W. Kittredge and W.H. Drury, for plaintiff.

F Hutchinson, for defendant.

OPINION

ALLEN J.

This is an action of tort for deceit in inducing the plaintiff to purchase from the defendant the lot of land referred to in the preceding case. Durkin v. Cobleigh, 30 N.E. 474. The false representation set forth in the declaration was, in substance, that the street upon which the lot was situated and which was a part of the defendant's land, actually extended from a public street called "South Street" to a public street called "Dudley Avenue;" and that the defendant had a right to open said street upon which the lot was situated, so as to make it continuous, and to connect with a public street at each end. The plaintiff alleged that in fact there was an intervening strip of land, which at one end of the private street cut off access to the public street. There was evidence tending to support the averments and to show that the defendant knew that he had no right over the intervening strip; but it was ruled that the action could not be maintained. The defendant's right of way, if he had it, would be appurtenant to his land, and so, when his land was divided up into building lots, would be appurtenant to the lot bought by the plaintiff. Whitney v. Lee, 1 Allen, 198; Miller v. Washburn, 117 Mass. 371. And we think that if he falsely and fraudulently represented to the grantee that a right of way was appurtenant to the estate granted, such misrepresentation might be actionable. Whether a right of way existed or not was a thing not open to be ascertained by an ocular inspection of the premises. Nevertheless the representation related to an actual state of things or fact, the existence or non-existence of which might naturally affect the value of the land sold. Dawe v Morris, 149 Mass. 188, 21 N.E. 313. The possible importance of the supposed right of way is obvious. In a case which arose in England (Denne v. Light, 8 De Gex.M. & G. 774) it was held that, where an important supposed means of access to premises bargained for was wanting, so that it was uncertain whether the purchaser could reach the estate at all times of the year, specific performance would not be decreed against him, even though there was no fraud. And in Brewer v. Brown, 28 Ch.Div. 309, the particulars of sale of a freehold property described the garden as inclosed by a rustic wall, with tradesman's side entrance, but it appeared that the wall did not form part of the property, and the tradesman's side entrance was used on sufferance; and it was held that one who had contracted to purchase the property was entitled to have his contract rescinded. With still stronger reason, if there has been a fraud in representing that...