Foster v. Lee
| Citation | 171 N.E. 229,271 Mass. 200 |
| Parties | FOSTER et al. v. LEE et al. |
| Decision Date | 28 April 1930 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Land Court, Essex County; C. T. Davis, Judge.
Suit by Alice M. F. Foster and others against George Lee and others. Finding for defendants, and the case was transferred on plaintiffs' exceptions.
Exceptions overruled.
J. D. Graham, of Boston, for petitioners.
W. I. Morse and J. P. Wright, both of Boston, for respondents.
This is a petition to register a tract of land situated in front of the property of the defendants Lee and Dobyne at Beverly, to the southeast of property of the West Beach Corporation and bounded easterly, southerly and westerly by the ocean, together with a right of way to the tract over land of Dobyne. The petitioners are the heirs of Israel Foster, and have succeeded to his right, title and interest in and to the locus and right of way. In 1819 Israel Foster acquired title to a lot of land which included the area now in question. He conveyed this lot in 1827 to one Woodberry, by a deed with the same description as that in the conveyance to him but with the following provision: ‘however I reserve to myself, my heirs and assigns forever all the rocks that are lying on the southern part of said land to my and their own use and benefit forever, and also all the beach that is lying to the Westward of said land I reserve to myself my heirs and assigns a free privilege to pass and repass over said lot of land to take away said rocks and to improve said beach at all times hereafter as may appear to be necessary.’ The defendants claim through and derive any title they may have in the premises from Henry Lee, Jr., who in 1846 succeeded to the interest, if any, of Woodberry in the tract in question, the deeds in this chain of title containing the clause ‘reserving all the legal rights and easements which Israel Foster's heirs and assigns may have in and upon the premises.’ March 1, 1869, the widow and heirs of Israel Foster executed a lease to run for fifty years and duly recorded covering the tract to which the petitioners seek registration of title, ‘to use the same for bathing, boating and fishing purposes and for no other.’ The defendant Dobyne derives her title by mesne conveyance from the estate of Henry Lee.
The locus which the petitioners seek to register consists of rocky ledges with deposits of sand which vary according to the state of the tide. It lies between high water mark on the south and the upland of the defendants on north. A copy of an ancient plan dated March, 1869, defining the rocks between the sea and upland of Henry Lee, was admitted in evidence. The significance of the delineations and words on this plan was for the judge of the Land Court to determine.
The judge stated in his decision, ‘If the only question involved in this case is the construction of the deed of 1827 from Foster to Woodberry, in the light of the then attendant circumstances, it seems to me clear that the reservation therein was merely that of an easement to take rocks from the southern point of the land conveyed by said deed.’ He ruled that the practical construction by the parties as shown by the indenture of 1869 and the action of the parties thereunder was not admissible because the language of the reservation was not indefinite or ambiguous and requiring construction from evidence outside the record. Subject to the petitioners' exception the judge ruled that they have not a record title to the tract in question and found no title in them by adverse possession. The petitioners also excepted to the judge's refusal to give their requests for rulings and to the granting of certain rulings requested by the defendant.
‘* * * Every deed is to be construed according to the intention of the parties as manifested by the entire instrument.’ Allen v. Holton, 20 Pick. 458, 463, 464. The grantor who made use of the language in the deed evidently thought of his rights in the rocks as rights reserved. He not only be express language undertook to reserve them, but twice in the covenants referred to them as reservations. This language is not necessarily controlling because the question whether ‘a particular provision is intended to operate as an exception or reservation is to be determined by its character, rather than by the particular words used.’ Perkins v. Stockwell, 131 Mass. 529, 530;White v. New York & New England Railroad Co., 156 Mass. 181, 185, 30 N. E. 612. By the terms of the deed the grantor did not undertake to reserve ‘all the rocks' but ‘all the rocks that are lying on the southern part of said land.’ The right of access also appears to limit that right so far as the rocks are concerned to passing and repassing over the land conveyed ‘to take away said rocks.’ It is in this respect unlike conveyances in which the iron or metals or minerals in a described area have been granted with a right to enter and dig and carry away the ore, where it has been held that a present estate in the fee of the ore was granted. Chester Emery Co. v. Lucas, 112 Mass. 424;Hunt v. Boston, 183 Mass. 303, 305, 67 N. E. 244.
The judge of the Land Court found that the strip of foreshore claimed by the petitioners lying between high water mark on the south and upland of the defendants on the north, consists of rocky ledge of granitic formation; that fissures have been worn in the ledge and through the action of frost portions of it have been split off; that there are a few large rocks that have been broken off, and a great quantity of small rocks have been made by the action of the sea varying in size from large pebbles to heavy stones; that many of these have been worn from the ledge while some probably have been washed up by the sea; that the ledge was not of value for commercial purposes in 1827 and has not been since; that the only value or commercial use of the rocks is and has been for walls or ballast. In the same sentence in which the rocks were served the grantor by a separate provision reserved ‘all the beach that is lying to the Westward of said land.’ In the two descriptions there is this significant difference, that the rocks reserved are on the land conveyed, but the beach undertaken to be reserved is west of the land conveyed. In locating the southeasterly boundary line of the West Beach Corporation (incorporated by St. 1852, c. 157) the judge found that the most westerly point of the strip of foreshore claimed by the petitioners does not extend at high water mark to within above eleven feet of the boundary line of the West Beach Corporation, but...
To continue reading
Request your trial
-
Markey v. Smith
...of the real estate of the Association [sic].’ The plaintiffs have no standing to question the action of the trustees. Foster v. Lee, 271 Mass. 200, 206, 171 N.E. 229;Connolly v. Kilcourse, 285 Mass. 398, 189 N.E. 199. See Dunshee v. Grundy, 15 Gray 314;Marion Street Garage Co. v. Sugden, 22......
-
Marcelle, Inc. v. Sol & S. Marcus Co.
...of that nature. Stony Brook Railroad Corp. v. Boston & Maine Railroad, 260 Mass. 379, 386, 157 N. E. 607, 53 A. L. R. 700;Foster v. Lee (Mass.) 171 N. E. 229. Compare Pittsfield & North Adams Railroad Corp. v. Boston & Albany Railroad Co., 260 Mass. 390, 398, 157 N. E. 611. The mere use by ......
- Southbridge Theatre Operating Co. v. Rosenberg
-
Trs. of Thayer Acad. v. Corp. of the Royal Exch. Assur. of London
...‘in accordance with the natural meaning of the words used in the light of the circumstances existing at the time.’ Foster v. Lee, 271 Mass. 200, 205, 171 N. E. 229, 231. [4] In Attleborough Savings Bank v. Security Ins. Co., 168 Mass. 147, 149, 46 N. E. 390,60 Am. St. Rep. 373, the words in......