Erickson v. Ames

• Decision Date: 21 September 1928
• Citation: 163 N.E. 70,264 Mass. 436
• Parties: ERICKSON et al. v. AMES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 436

163 N.E. 70

ERICKSON et al.

v.AMES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 21, 1928.

Exceptions from Land Court, Suffolk County.

Petition by Arioch W. Erickson and others, trustees, against Oliver Ames and others, trustees. Petition dismissed, and petitioners bring exceptions. Exceptions overruled.

J. Noble, C. P. Bartlett, and W. J. Kelleher, all of Boston, for petitioners.

W. I. Morse and J. P. Wright, both of Boston, for respondent Ames and others.

H. B. Newton and H. E. Weir, both of Boston, for Wright and others.

W. J. O'Malley, Asst. Corp. Counsel, of Boston, was present but did not argue nor file a brief.

RUGG, C. J.

This is a petition to register title in fee simple, subject to rights of way, to a strip of land between Washington Street and Harrison Avenue in Boston, over which lies a private way known as Chickering Place.

The petitioners own the land and building at the southeasterly corner of Chickering Place and Washington Street. The respondents, the Ames Trustees, own the land and buildings on the north side of Chickering Place throughout its length. Other respondents own land abutting on Chickering Place.

The chief question is whether the petitioners own the fee of the entire Chickering Place.

Prior to 1822 title to the land included within the lines of Chickering Place, together with land on each side, had been acquired by Lemuel Hayward by two deeds, one from Nathaniel Sweetser and the other from Jacob Sweetser. He also owned land southerly of what is now Hayward Place, and that was included in the partition proceedings as was all his other real estate. After his death partition was made of his real estate by three commissioners appointed upon proceedings in the Supreme Judicial Court in 1822. The report of the commissioners was approved and accepted by the court. Accompanying that partition was a plan showing a subdivision of the Washington (then Newbury) Street property into lots with two passages running easterly from Washington Street and a third passageway at the east connecting the two; the lots having buildings thereon being left unnumbered and the vacant lots being numbered. The northerly passageway thirteen feet wide is the present Chickering Place. The southerly passageway is the present Hayward Place and the connecting passageway at the east is within the present limits of Harrison Avenue.

In this partition, each of the lots set off to the several parties other than Joshua H. Hayward was described by metes and bounds together with the free and uninterrupted use and privilege in the abutting passageways. The portion of the estate set off to Joshua H. Hayward was described, not by metes and bounds, but, at the end of the commissioners' report, as ‘Estate left undivided for Joshua H. Hayward, Sweetser estate in Newbury Street, reserving a right in the passageway 13 feet wide.’ The estate thus set off in severalty to Joshua H. Hayward included the area north of Chickering Place to a depth recited as two hundred and eighty-nine feet from Newbury, now Washington, Street. The ‘Sweetser Estate in Newbury Street’ as owned by Lemuel Hayward covered all the land now owned by the parties to this suit including the fee of the land in Chickering Place, but not that in Hayward Place or that in the other passageway now included in Harrison Avenue.

Each of the other lots abutting on said passageways was described as bounding ‘by’ or ‘on’ the respective passageways (Chickering Place, Hayward Place and the easterly way now in Harrison Avenue) with a clause as to free and uninterrupted privilege therein similar to that in the description of the parcel set off, for example, to Sarah H. Hayward, through whom the respondents claim a part of their estate. To her was set off a parcel on the easterly side of Newbury Street bounded southerly ‘by said passageway 13 feet wide leading to Newbury Street 105 feet 3 inches, with a free and uninterrupted use and privilege in said passageway leading to said Newbury Street which is to be kept open and used in common for the benefit of the owners of estates adjoining.’ The respondents also claim a part of their estate through Joshua H. Hayward. The contention of the petitioners is that, by the rules for construction of deeds established previous to 1822 and then prevailing, the portion set off to Joshua H. Hayward included also the fee and soil of Chickering Place, and that no part of the fee and soil of Chickering Place passed to Joshua's brothers and sisters under the description of the lots set off and assigned to them. The petitioners' title to the land on which their building stands comes partly through Harriet Hayward, daughter of Lemuel, and partly from the trustees for his son, Joseph. The Ames Trustees' title is through Joshua H. and Sarah H., son and daughter of Lemuel Hayward. There are four of these deeds from Joshua,-two dated September 11, 1823, the third dated October 11, 1823, and the fourth dated December 31, 1835. All of these deeds describe the premises conveyed as bounding southerly ‘on’ or ‘by’ the thirteen-foot passageway (Chickering Place). By quitclaim deed dated February 3, 1836, Joshua conveyed to his brother Joseph H. Hayward, through whom the petitioners claim their title, all his ‘right, title and interest in and to Sweetser's Court [now Chickering Place], so-called in Boston, being the fee of the soil in the passageway in said court and subject to the rights and privileges in the same granted to the owners of the building lots in said court.’ In precisely similar language the same deed included a grant of Joshua's interest in the fee of the soil of Hayward Place, and the unnamed passageway connecting the eastern ends of Chickering Place and Hayward Place. This deed is witnessed by Sarah H. Hayward and acknowledged before Charles Hayward, sister and brother respectively of the grantor and grantee. The evidence was undisputed, and it was conceded by each of the parties to this suit that their adversaries have whatever title passed to their respective predecessors in the partition of 1822. The petitioners introduced in evidence certain conveyances in the respondents' chain of title which, they contended, were material and competent evidence, if as a matter of law the language of the partition deeds is not conclusive of the intent of the parties. One of these conveyances is a mortgage given in 1876, through foreclosure of which the Ames Trustees derive title to a lot near Harrison Avenue, which was set off in the partition to Sarah H. Hayward; the other is a deed to Robert and Freeman Wight of a portion of the width of their estate by their immediate predecessor in title dated February 28, 1903. The land conveyed by this deed is part of Lot 9, which was set off in the partition of 1822 to Charles Hayward. This mortgage and deed refer respectively to the northerly line

and southerly line of Chickering Place as boundaries of the granted premises.

The judge of the Land Court filed a decision setting out at length the reasons leading him to the conclusion that the petitioners have not title to the fee and soil of Chickering Place beyond such portion as may be owned by them as a part of their lot on the corner of Chickering Place and Washington Street and, since their title to that tract was not before him, he ordered the petition dismissed. He granted certain requests for rulings in substance that the effect of the proceedings for partition was to vest in those, to whom the several parcels abutting on Chickering Place were set off, the fee and soil of that passageway to its center line between the side lines of the several parcels extended. The petitioners excepted to the granting of these requests and to the ruling as to the state of their title in the fee of the passageway.

[1][2][3] The case comes before us by exceptions. Hence only questions of law are presented, and the findings of fact made by the Land Court must stand if warranted on any view of the evidence with its justifiable inferences. Marvel v. Cobb, 204 Mass. 117, 90 N. E. 413;Boston Five Cents Savings Bank v. Massachusetts General Hospital, 255 Mass. 583, 586, 152 N. E. 40;Eaton v. Eaton, 233 Mass. 351, 369, 124 N. E. 37, 5 A. L. R. 1426;G. L. c. 185, § 15. The general finding against the petitioners imports a finding of all subsidiary facts essential to that result, so far as permissible on the evidence. Adams v. Dick, 226 Mass. 46, 52, 115 N. E. 227. This case presents chiefly for interpretation the construction of a written instrument. If that were all, no deference could be paid to the decision of the trial judge and this court would decide its meaning. Creighton v. Elwell, 243 Mass. 580, 583, 137 N. E. 737;Gould v. Converse, 246 Mass. 185, 189, 140 N. E. 785;Farber v. Mutual Life Ins. Co. of New York, 250 Mass. 250, 253, 145 N. E. 535, 36 A. L. R. 806. The significance of words takes color from the time and circumstances in which they are used, and the intent of parties is almost always a matter of fact. Therefore weight will be given to the findings made. Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 521, 522, 117 N. E. 924;Webber v. Cox, 256 Mass. 595, 597, 153 N. E. 457.

There is much to support the main contention of the respondents that upon the state of the law as it had been prior to 1822, manifested by authoritative judicial utterances, and as it was understood to be as late as 1838, a boundary ‘by’ or ‘on’ a public way in an instrument transferring title to real estate passed no title to the fee of the land under the way, but only to the line of the way. See Clap v. McNeil, 4 Mass. 589, and Alden v. Murdock, 13 Mass. 256, decided before 1822, and Sibley v. Holden, 10 Pick. 249,20 Am. Dec. 521;Tyler v. Hammond, 11 Pick. 193, 213, and Van O'Linda v. Lothrop, 21 Pick. 292,32 Am. Dec. 261, decided between 1822 and 1838. See also Brown v. Peabody, 228 Mass. 52, 55, 116 N. E. 958. Under these adjudications...