Frawley v. Forrest

• Decision Date: 30 December 1941
• Citation: 38 N.E.2d 631,310 Mass. 446
• Parties: ADELINE J. FRAWLEY v. MARY E. FORREST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 446

38 N.E.2d 631

ADELINE J. FRAWLEY v. MARY E. FORREST.

Supreme Judicial Court of Massachusetts, Plymouth.

December 30, 1941

October 8, 9, 1941.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Way, Private creation, extent, infringement, enforcement of easement. Real Property, Remainder, Tenancy in common. Easement. Tenants in Common.

A certain deed by tenants in common to one of them of a parcel of land bounded on a passageway to which the grantors retained title, but silent as to any rights therein, gave the grantee a right of travel over the passageway, as then existing, including not only the portion contiguous to the granted parcel but also the portion lying between that parcel and a nearby public way.

A deed of real estate containing a reservation of the premises to the grantor for life operates to seise the grantor of a life estate and to vest the remainder in the grantee.

A remainderman of real estate may have redress at law or in equity for an infringement of an appurtenant right of way of a character injurious to the remainder.

The discharging of water upon a private way from drains connected with the conductors of a nearby house, the extension of a lawn into the way, and the placing of a block of stone or cement in the way in such a position as to interfere with the passage of vehicles thereto from the driveway of the dominant tenement were acts for which in the circumstances the owner of a remainder in the dominant tenement was entitled to redress.

BILL IN EQUITY filed in the Superior Court on October 13, 1939. The properties described in the opinion are shown on the sketch on page 448, post.

An interlocutory decree confirming a master's report was entered by order of Brogna, J. By order of Forte, J., the following final decree was entered:

"1. The plaintiff, her heirs and assigns have a right of way for foot and vehicular passage sixteen and one half feet in width from Cottage Street . . . to her property . . . more particularly described . . . as follows: . . . [then follows a description of the way].

"2. That the defendant . . . be and is hereby directed and ordered to remove the three tile drains which carry water into said right of way, ashes, grass and other debris, a block of stone or cement and other obstructions in said right of way within thirty days from the entry of this decree.

"3. That the defendant, her agents and servants be permanently enjoined from in any way obstructing the free use of said described right of way.

"4. That the plaintiff be and is hereby awarded damages in the sum of . . . $20 . . . and costs . . . ."

The defendant appealed from both decrees. W. J. Good, for the defendant.

W. F. Hallisey, for the plaintiff.

COX, J. This is a bill in equity in which the plaintiff alleges that she is the owner in fee of certain real estate, that the defendant is owner in fee of real estate "next adjacent" to the plaintiff's land on the west, and that included in the grant to the plaintiff is a right of way, sixteen and one half feet wide, that runs from Cottage Street in Randolph "along" the westerly side of her land. Further allegations are that the defendant has placed large quantities of ashes and gravel upon the way, has substantially raised its grade and has placed pipes upon her land and over the right of way for the purpose of conveying water from the conductors of her house. The plaintiff prays for an injunction, damages and for further relief.

The defendant's answer denies that the plaintiff has a right of way and alleges that, if it is found that she has placed the pipes as alleged, she has maintained them for a period of over twenty-nine years and that she has a right to maintain them "to the said right of way."

The suit was referred to a master whose report was confirmed by interlocutory decree, and a final decree was entered granting the plaintiff relief and damages. The defendant appealed from the interlocutory and final decrees. The evidence is not reported, and the master's findings of fact are conclusive unless it appears from the report itself that they are plainly wrong. This court must decide the suit upon the report in accordance with its own judgment. General Fruit Stores, Inc. v.

Markarian, 300 Mass. 90 . (ILLUSTRATION)

The master found that in 1856 the heirs of one Thayer owned a farm in Randolph which included the lots of the plaintiff and the defendant, and other land. The easterly line of the farm began at Short Street and ran in a northerly direction by two courses along the easterly line of what is now School and Moulton streets to Cottage Street. Said easterly line then continued in exactly the same course as the one just south of Cottage Street to the southwest corner of the plaintiff's lot, so called, hereinafter referred to as Lot A. From this corner the line of the heirs ran easterly along the northerly line of another lot of land, not owned by them, hereinafter referred to as Lot B. Lot B was bounded on the south by Cottage Street, on the west by land of the heirs, and on the north, in part, by Lot A, that is, its westerly portion was between Cottage Street and Lot A, and its westerly bound was the easterly line of the heirs' land. The line of the heirs running easterly from the southwesterly corner of Lot A, which was the southerly line of the Lot A, extended to a corner, where it turned and ran northerly along the easterly line of Lot A and other land of the heirs, hereinafter referred to as Lot C. The southeast corner of Lot C and the northeast corner of Lot A coincided. The southerly bound of Lot C coincided with the northerly line of Lot A, extended to the west across the northerly end of the passageway in question, and from there on to the west it coincided with a part of the northerly line of the defendant's lot, hereinafter referred to as Lot D.

In June, 1856, said heirs conveyed Lot C, together with "the privilege of a passway one rod wide through land of grantors to `Cottage Street' and entering upon Cottage Street nearly at right angles with the northerly line of said street and at a point opposite the passway on the southerly side of said street running southerly from said street through land of the grantors and the school house lot to Short Street, or however otherwise said premises may be bounded, measured or described." Prior to this deed and in April, 1856, said heirs conveyed to the town of Randolph a parcel of land to the south of Cottage Street. This deed recites, among other things: "reserving for the benefit of the grantors, their heirs and assigns, the free use and enjoyment in common with the grantees, their successors and assigns, of a common pass way one rod in width upon the easterly line of the lot hereby granted, the entire length thereof; and we the said grantors do further give, grant, bargain, sell and convey unto the said inhabitants, their successors and assigns, the extension of the above-named common pass way one rod in width through the remaining lands of the grantors, both north and south to the public highways of the town aforesaid." The easterly line of this common pass way coincided with a part of the easterly line of the heirs' land, hereinbefore described as extending from Short Street to Cottage Street.

On June 5, 1857, said heirs conveyed Lot A to two of the heirs, bounding it "westerly by a passway" and, on the same day, said heirs conveyed Lot D to one of the heirs, the description of which, in so far as material, is as follows: "situate on the northerly side of Cottage Street in said Randolph and bounded as follows: beginning at a corner formed by Cottage Street and a passway running northerly, thence northerly on said passway to" Lot C. In all subsequent conveyances of lots A and D they were described as bounding on the way, variously described as "way," "private way," "passway," "passage way," "driftway" and "right of way." In the respective chains of title of the parties, other than describing the lots conveyed as bounding upon the way, there is no express reference to any easement in the way except in the deeds to the plaintiff and to her grantor.

Prior to 1934, no easement, other than the right to use the way, was ever claimed by the defendant or her predecessors in title. They recognized the right of the occupants of lots A and C to use all parts of the way for passage with vehicles and on foot to and from Cottage Street and lots A and C, and prior to 1934 such uses as were made of the land within the limits of the way by the defendant and her predecessors in title were not under any claim of right nor with the intention of depriving the owners of lots A and C, or any of them, of any vested right in the way. The defendant now contends that the plaintiff has no right or interest in the passageway leading northerly from Cottage Street.

1. When a grantor conveys land as bounded by a street or way, this is not merely a description by the grantor, and his heirs and those claiming under him are estopped to deny that there is a street or way to the extent of land so bounded on the way, and the grantee acquires by the deed a perpetual easement and right of passage on, upon and over it.

This is a right not only coextensive with the land conveyed, but for the entire distance of the way, as it is then actually laid out or clearly indicated and prescribed. Oldfield v. Smith, 304 Mass. 590 , 595-596, and cases cited. Such a deed gives the grantee rights by estoppel not only in that part of the passageway that lies opposite his land, but also, by necessary implication, to such outlet or termination as will make the way available for its intended purpose. If nothing else is contained in the deed to define it, the extent of the grantee's rights beyond the...