Gorton-pew Fisheries Co. v. Tolman

Decision Date02 January 1912
Citation210 Mass. 402,97 N.E. 54
PartiesGORTON-PEW FISHERIES CO. v. TOLMAN et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

H. T. Lummus and C. N. Barney, for petitioner.

C. A Russell, for respondents.

OPINION

SHELDON J.

No claim is now made that the respondents have any title to the fee of the roadway in question, or that they have any right of way over it by estoppel under the rules laid down in such cases as Motley v. Sargent, 119 Mass. 236; Lemay v. Furtado, 182 Mass. 280, 65 N.E. 395; McKenzie v Gleason, 184 Mass. 452, 69 N.E. 1076, 100 Am. St. Rep 566; Gould v. Wagner, 196 Mass. 270, 82 N.E. 10; and Downey v. Hood, 203 Mass. 4, 89 N.E. 24. It is not denied that the fee of the roadway, subject to whatever rights of passage have been created therein, vested in the petitioner's grantors, the sons of John Pew, by the devise to them of his business property. Cleverly v. Cleverly, 124 Mass. 314; Dudley v. Milton, 176 Mass. 167, 57 N.E. 355. Nor do the respondents claim that they are entitled to a way by necessity strictly so called. The main question is whether upon the findings made by the judge of the Land Court, so far as those findings were warranted, he was right in ruling that under the will of John Pew his widow took as appurtenant to the estate specifically devised to her an easement of passage over this way from Main street to her rear land.

By the second clause of his will, Mr. Pew devised to his widow his 'homestead estate on the southerly side of Union Hill in said Gloucester as now enclosed.' After other and various devises and bequests, he provided in the sixteenth article of his will that the garden southerly of his dwelling house should be a part of the homestead given to his wife, and added, 'And I do hereby devise said garden to my said wife as a part of said homestead.' This included the stable and garden lot, to which as well as the dwelling house it is now claimed that the way is appurtenant.

The judge at the trial found as a fact, from the other facts found by him, that at the time the will was made and at the date of the testator's death the only reasonable means of access to the stable and garden lots was by the way in question. As this was an inference which could be drawn from those facts, the finding is now conclusive, and we cannot consider whether it is supported by the weight of the evidence or whether a different inference could have been drawn from those facts.

Upon this finding and the other facts stated in the exceptions and in the decision of the Land Court which is referred to therein, it appears to us that the devise to Mrs. Pew was intended to include the right of way which has been mentioned. This depends upon the intention of the testator, as gathered from the language which he has used, considered in the light of the circumstances as known to him, and with the help of all the evidence available to show what those circumstances were. Leonard v. Leonard, 2, Allen, 543, 545; Bagley v. N. Y., N.H. & H. R. R., 165 Mass. 160, 164, 42 N.E. 571. As the way was laid out by him over his own land and was afterwards used by himself and those with whom he was connected, we must look at its origin and history, at the manner of its use, and the purpose with which it was wrought for travel, so far as that purpose was manifested by its situation, the manner of its construction, and the use which he himself made and allowed others to make of it. These facts have been found with some detail; and from them it was certainly proper, if indeed it was not necessary, to draw the inference that Mr. Pew built and maintained this roadway for the purpose of affording convenient access to all the part of his property abutting upon it, including the garden and stable lot in the rear of his dwelling house, as well as the wharves at the end of the way and the business property, both what he first owned and what he afterwards acquired, lying upon the other side of the way. It also could well be found, as manifestly it was found, that he continued to have this intention during his lifetime, and to use the way in conformity therewith. It was under these circumstances that he made his will, and in the first operating clause thereof after the appointment of his executors devised to his wife his homestead 'as now enclosed.' Then, after having almost completed his testamentary dispositions, his mind reverted to the provision made for his wife, and he seems to have feared that under the language he had used she would not take all that he desired her to have, or else to have resolved to make a more liberal provision for her; and he accordingly expressly devised to her the garden which he had used in connection with the house. In this clause he omitted the limitation which he previously had made, that she was to take the propery 'as now enclosed.' On the contrary, after giving to her in the rest of this clause his household furniture and other similar articles, he added the significant words, 'intending that my said wife shall have my said homestead and the personal property owned by me in the dwelling house of the same as it shall be at my decease.' Here he plainly used the word 'homestead' with a much broader meaning than he applied in the clause last quoted to the word 'dwelling house,' and showed that he intended her to take the whole estate with the whole beneficial use and enjoyment thereof. But upon the findings of fact it appears that both when he made his will and when he died the possession of this easement was necessary to such full use and enjoyment. We cannot avoid the conclusion that he expected this roadway to be preserved just as he had laid it out, and intended to give to his widow an easement therein for the benefit of her house and land, as a part of his devise to her. Otis v. Smith, 9 Pick. 293; Eliot v. Carter, 12 Pick. 436, 442; Hunt v. Braintree, 12 Metc. 127; Aldrich v. Gaskill, 10 Cush. 155; Melcher v. Chase, 105 Mass. 125; Kimball v. Ellison, 128 Mass. 41; Hammond v. Abbott, 166 Mass. 517, 44 N.E. 620; Dudley v. Milton, 176 Mass. 167, 57 N.E. 355; Millerick v. Plunkett, 187 Mass. 97, 72 N.E. 354.

But the court, in determining the rights of parties under a will, seeks first to ascertain the real intention of the testator, and will give effect to that intention unless prevented by some rule of property or fixed principle of law. McCurdy v. McCallum, 186 Mass. 464, 468, 72 N.E. 75; Crapo v. Price, 190 Mass. 317, 320, 76 N.E. 1043; Gray v. Whittemore, 192 Mass. 367, 374, 78 N.E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246; Boston Safe Deposit Co. v. Blanchard, 196 Mass. 35, 38, 81 N.E. 654; Jewett v. Jewett, 200 Mass. 310, 317, 86 N.E. 308; Ware v. Minot, 202 Mass. 512, 516, 88 N.E. 1091.

There is no rule of property or principle of law to prevent us from carrying out the intention of this testator. On the contrary there is much authority for saying that if Mr. Pew had in his lifetime made simultaneous conveyances of his property in the same language that he used in his will, this roadway, visibly wrought on the surface of the ground, would have been subjected to an easement of passage in the hands of its grantee. Scott v. Moore, 98 Va. 668, 37 S.E. 342, 81 Am. St. Rep. 749; Phillips v. Phillips, 48 Pa. 178, 86 Am, Dec. 577; Cannon v. Boyd, 73 Pa. 179; Overdeer v. Updegraff, 69 Pa. 110; Liquid Carbonic Co. v. Wallace, 219 Pa. 457, 68 A. 1021, 26 L. R. A. (N. S.) 327; Brakely v. Sharp, 10 N. J. Eq. 206; Toothe v. Bryce, 50 N. J. Eq. 590, 25 A. 182; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671; Mason v. Horton, 67 Vt. 266, 31 A. 291, 48 Am. St. Rep. 817; McElroy v. McLeay, 71 Vt. 396, 45 A. 898; Dunklee v. Wilton R. R., 24 N.H. 489; Butterworth v. Crawford, 46 N.Y. 349, 7 Am. Rep. 352; Simmons v. Cloonan, 81 N.Y. 557; Baker v. Rice, 56 Ohio St. 463, 47 N.E. 653; Morrison v. King, 62 Ill. 30; Cihak v. Klekr, 117 Ill. 643, 7 N.E. 111; Irvine v. McCreary, 108 Ky. 495, 56 S.W. 966, 49 L. R. A. 417; Jones v. Sanders, 138 405, 71 P. 506; United States v. Appleton, 1 Sumn. 492, 502, Fed. Cas. No. 14,463. See, also, the elaborate note to the case of Rollo v. Nelson, 26 L. R. A. (N. S.) 315, in which this question is exhaustively treated.

This court, like some others, never has gone to the full length of some of the decisions above referred to; but the underlying principle has been recognized and upheld. Atkins v Boardman, 2 Metc. 457, 464, 37 Am. Dec. 100; Leonard v. Leonard, 2 Allen, 543, 545, 7 Allen, 277, 283; Oliver v. Dickinson, 100 Mass. 114; Adams v. Marshall, 138 Mass. 228, 236, 52 Am. Rep. 271; Case v. Minot, 158 Mass. 577, 33 N.E. 700, 22 L. R. A. 536; Pearson v. Spencer, 3 B. & S. 761; Brown v. Alabaster, 37 Ch. D. 490; Milner's Safe Co. v. Great Northern & City Ry. [1907] 1 Ch. 208. It has indeed been said that the rule is to be applied with some strictness and only where the easement which is sought to be maintained, though not expressly granted, is yet necessary to the enjoyment of the estate which has been conveyed. Johnson v. Jordan, 2 Metc. 234, 37 Am. Dec. 85; Carbrey v. Willis, 7 Allen, 364, 369, 83 Am. Dec. 688; Randall v. McLaughlin, 10 Allen, 366; Buss v. Dyer, 125 Mass. 287, 289; Cummings v. Perry, 169 Mass. 150, 155, 47 N.E. 618, 38 L. R. A. 149; McSweeney v. Com., 185 Mass. 371, 374, 70 N.E. 429; Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748; Dolliff v. Boston & Maine R. R., 68 Me. 173; Stevens v. Orr, 69 Me. 323; Hildreth v. googins, 91 Me. 227, 39 A. 550; Whiting v. Gaylord, 66 Conn. 337, 34 A. 85, 50 Am. St. Rep. 87; Standiford v. Goudy, 6 W. Va. 364; Heysey v. Vicary, 16 M. & W. 484; Worthington v. Simson, 2 E. & E. 618. But the necessity thus required is not an absolute physical necessity, but merely such a reasonable necessity for the use and...

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