Gould v. Wagner

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: MORTON, J.
• Citation: Gould v. Wagner, 196 Mass. 270, 82 N.E. 10 (Mass. 1907)
• Decision Date: 15 October 1907
• Parties: GOULD v. WAGNER et al.

196 Mass. 270

82 N.E. 10

GOULD v. WAGNER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

October 15, 1907

Oct 15, 1907.

COUNSEL

Weston & Weston for petitioner.

Adams & Blinn, for respondents.

OPINION

MORTON J.

The questions in this case relate to the rights of the parties in a passageway 5 feet wide, extending from Bennington street to Newtonville avenue in Newton, and bounding easterly the lots belonging to the respondents. The passageway and lots foremerly belonged to one John B. Gould, and constituted one lot known as lot 17 on plan of land belonging to one Granger. The passageway was laid out by Gould along the easterly line of lot 17. He did not own then and has not owned since any land easterly of and adjoining it on that side. The respondents claim title to the passageway under two mortgages executed by Gould to the Hingham Institution for Savings of the lots belonging to them respectively. The petitioner, who is the wife of said Gould, claims title to the passageway under a conveyance from her husband to her through a conduit of the passageway after the mortgages were given to the Institution for Savings.

The mortgage to the Institution for Savings of the lot belonging to the defendant Barker described it as 'northeasterly on Newtonville avenue 85 feet; southeasterly on a passageway 5 feet wide running through the grantor's land to Bennington street 117 2/3 feet; southwesterly on other land of the grantor 85 feet, and northwesterly by lot 16 on said plan 117 2/3 feet.' That of the lot belonging to the respondent Wagner described it as 'southeasterly on a passageway 5 feet wide running through grantor's land to Bennington street 82 1/3 feet; southwesterly on Bennington street 85 feet; northwesterly on lot 16 on said plan 82 1/3 feet, and northeasterly on other land of the grantor 85 feet.' The two lots were each 90 feet on the street.

The principal question is whether the mortgages operated to convey to the westerly line of the passageway, or to the center of it, or to the easterly line. Upon that question the land court found and ruled, in substance, that the petitioner had title to the easterly half of the passageway, with a right of way over the westerly half, and that the respondents had a corresponding right of way over the easterly half. We think that this was correct.

The general rule is that a deed bounding on a way conveys the title to the center of the way if the grantor owns so far. Boston v. Richardson, 13 Allen, 146, 152. The reasons for this rule are stronger in the case of a public way than in that of a private way, but the rule applies to both public and private ways. Motley v. Sargent, 119 Mass. 231; Fisher v. Smith, 9 Gray, 441. The fact that the distances of the side lines do not extend to the center of the way is not enough to exclude the operation of the rule. Clark v. Parker, 106 Mass. 554; McKenzie v. Gleason, 184 Mass. 452, 69 N.E. 1076, 100 Am. St. Rep. 566. The question is one of intention. If competent, the evidence which was admitted against the objection of the respondents would tend to show that it would be contrary to the intention of the grantor to construe the mortgage deeds as conveying title to the easterly line of the way. But independently of that, the question is settled, we think, in this commonwealth in favor of the ruling of the land court, though it has been decided differently in other jurisdictions. See Haberman v. Baker, 128 N.Y. 253, 28 N.E. 370, 13 L. R. A. 611; Taylor v. Armstrong, 24 Ark. 102; In re Robbins, 34 Minn. 99, 24 N.W. 356, 57 Am. Rep. 40; Jones v. Water Lot Co., 18 Ga. 539; Healey v. Babbitt, 14 R.I. 533. In Lemay v. Furtado, 182 Mass. 280, 65 N.E. 395, a case very similar to this, it was held that the grantee took only to the middle of the way. It is true that what the court said on this point was in a sense obiter. But the point was considered and passed upon at the request of the parties with a view to disposing of the whole controversy, and the opinion is to be regarded, therefore, as deciding the question. The same question was considered in Gray v. Kelley, 80 N.E. 651, with the same result as in Lemay v. Furtado, supra, and in Hamlin v. Attorney General, 81 N.E. 275, the question was again presented and a like conclusion arrived at. In Gray v. Kelley, supra, the doctrine laid down in the cases cited above from other states was distinctly repudiated, and this was repeated in Hamlin v. Attorney General, supra. See, also, Everett v. Fall River, 189 Mass. 513, 75 N.E. 946; McKenzie v. Gleason, 184 Mass. 452, 69 N.E. 1076, 100 Am. St. Rep. 566; Motley v. Sargent, 119 Mass. 231.

The evidence in regard to the laying out and construction of the way and the condition of the locality was admissible ( Motley v. Sargent, supra, 235; Codman v. Evans, 1 Allen, 443, 446); but we doubt whether the evidence in regard to the ownership by the petitioner and her husband of other lots on the other side of Bennington street, and that the use of the way was of value to their lots, that the way was used by residents on Bennington street, and that the petitioner's husband was paid for such use by some of the residents, was competent. If inadmissible, however, it does not affect the construction which, in our opinion, should be given to the mortgage deeds.

We doubt also whether the construction given by the land court to the quitclaim deed from the petitioner and her husband to the bank dated April 23, 1893, was correct. The deed was given to correct errors of description in the mortgage of the Wagner lot and in a subsequent quitclaim deed of the equity by said John B. Gould, and 'to confirm the title conveyed by said John B. Gould to this grantee by mortgage aforesaid, and by deed of January 22, 1897; (the quitclaim deed referred to); and it may well be doubted whether it operated to convey any title on the part of the petitioner. Scaplen v. Blanchard, 187 Mass. 73, 72 N.E. 346. But no exception was taken to the ruling.

The appeal from the 'supplemental memorandum and decision' has been waived. The result is that the exceptions must be overruled.

DISSENTING

So ordered.

DISSENTING

LORING and SHELDON, JJ., are of opinion that the mortgages of the Barker and Wagner lots made by Gould to the Hingham Institution for Savings on August 8, 1894, carried the fee in the whole of the passageway here in question and not in the westerly half only.

This passageway was originally laid out along the southeasterly boundary line of the grantor's land, and he at no time owned any land beyond it.

It is agreed by all that the mortgages in question, as matter of construction, did not stop at the westerly side line of the passageway. It is also agreed that there is nothing to indicate an intention that the southeasterly boundary of the lot not stopping at the side line of the way should go to the center or to the further side of it. The case now before us is confessedly that of a conveyance of premises bounded by a way on the extreme limit of the grantor's land, but wholly upon it, where no intention can be gathered as to where the side line is to be beyond the fact that the lot is bounded by the way.

In every case in which this point has been up for decision it has been held that the fee in the whole of the passageway passed to the grantee. It has been so held in well-considered cases in New York, Rhode Island, Minnesota, Arkansas and Georgia. Haberman v. Baker, 128 N.Y. 253, 28 N.E. 370, 13 L. R. A. 611; Healey v. Babbitt, 14 R.I. 533; In re Robbins, 34 Minn. 99, 24 N.W. 356, 57 Am. Rep. 40; Taylor v. Armstrong, 24 Ark. 102; Jones v. Water Lot Co. of Columbus, 18 Ga. 539.

The question is an open one in this commonwealth. There is a dictum to the contrary in Lemay v. Furtado, 182 Mass. 280, 65 N.E. 395. The bill before the court in that case was...