Gray v. Kelley

• Decision Date: 01 March 1907
• Citation: 80 N.E. 651,194 Mass. 533
• Parties: GRAY et al. v. KELLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 533

80 N.E. 651

GRAY et al. v. KELLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1907

COUNSEL

Robert A. Jackson, for petitioners.

Robert W. Nason, Thomas W. Proctor, and William H. White, for respondents.

OPINION

KNOWLTON C.J.

On January 2, 1850, John W. Warren and Simon Warren became the owners, as tenants in common, of a tract of land lying northerly of Warren street in Brookline. For their own convenience they laid out a private way, 24 feet wide leading nearly at right angles from Warren street, a distance of 521 feet northerly into this tract of land. Under date of June 5, 1862, they executed, acknowledged, and caused to be recorded a declaration, with a release of dower by their wives, describing this way by metes and bounds, referring to their having laid it out previously, and saying that they did 'set apart and appropriate forever the land occupied by said way, twenty-four feet wide, as a private way for all the present and future abutters thereon, according to out original intention.' From time to time previously to August 18, 1851, they made conveyances of land adjacent to this way, on each side, in which they gave the respective grantees 'a right to pass and repass at pleasure over any part of said private way, twenty-four feet wide, adjoining the premises' conveyed. The plaintiffs own the land abutting on the way on the westerly side, and the defendant owns a part of the land abutting on the way on the easterly side. The defendant has placed upon different parts of the way his carts, and sleds and other chattels, and has thereby obstructed these parts of it. The plaintiffs bring this bill to obtain an injunction against the continuance of such obstruction, and they claim their rights as incident to their ownership of the land on the side of the way, and also as owners of the fee of the whole way. The defendant also contends that he is the owner of the fee in the entire way, as a tenant in common with another, and he claims a right to use the way as he has used it.

The first question is: What rights are secured to abutters on the way by the declaration referred to and the deeds made in accordance with it? If the right of a grantee is to have the way, throughout its entire width, remain at all times unobstructed, so that one may pass freely over any part of it, the plaintiff is entitled to an injunction. If the provisions of the deed are satisfied by leaving the way in such a condition that one can drive through it, without very great inconvenience, notwithstanding obstructions in places, a different result would be reached.

The deeds give a right to have a way, in common with others, whose limits and boundaries are defined, all of which is appropriated and set apart for this use. We think that the language quoted from the deeds, as well as the language of the declaration, requires that the way, throughout its entire width should be left unobstructed. This seems to be its natural meaning, and similar language has been given such a meaning in the decisions. Tudor Ice Co. v. Cunningham, 8 Allen, 139; Tucker v. Howard, 122 Mass. 529; Nash v. New England Mutual Life Ins. Co., 127 Mass. 91; Gerrish v. Shattuck, 128 Mass. 571; Hamlin v. New York, etc., Railroad Co., 176 Mass. 514, 57 N.E. 1006.

These considerations are enough to entitle the plaintiffs to relief, but not to show fully the grounds of their claim nor the extent of their rights. The parties have argued at length the question whether the plaintiffs are the owners of the fee of the way, and this question is expressly reserved by the report. Upon all the evidence the superior court ruled, 'that the plaintiffs owned no part of the fee of the way as claimed by the plaintiffs, but that they have an easement in the said way which entitles them to have said way kept open and unobstructed to its full width,' and ordered a decree for the plaintiffs. A part of the reservation is in these words: 'If, on the evidence actually admitted in the case, this ruling was correct, and if the exclusion of the evidence was correct, the decree is to be entered as ordered.'

Numerous conveyances, including many reconveyances, were made from time to time from August, 1851, to December 10, 1879, together covering all the land adjacent to the way on both sides, and it is not contended that any one of these included the fee of any part of the way, although all of them gave an easement in it. On this last date, a quitclaim deed, without warranty, was made from Almira Warren and John W. Warren to Frank C. Warren, of two lots of land, one of which is the lot on the westerly side of this way. The plaintiffs claim under this deed, and contend that it included the fee of the whole of the way because it gave the way as the easterly boundary.

The law has long been well settled that a deed, which bounds the granted premises on a street or public way, conveys the property to the middle of the way if the grantor owns so far unless there is language in it which indicates that he intends to convey only to the side of the way. The rule is stated more definitely by Mr. Justice Gray, in Boston v. Richardson, 13 Allen, 146, as follows: 'Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made part, as a house, a mill, a wharf, or the like, the side of the land or structure referred to as a boundary is the limit of the grant. But when the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not, in its description or nature, include the earth as far down as the grantor owns, and yet which has width, as in the case of a way, a river, a ditch, a wall, a fence, a tree, or a stake and stones, then the center of the thing so running over or standing on the land is the boundary of the lot granted.' This shows the fundamental and principal reason of the rule. To this reason is added the probability that the grantor, if bounding on a street, under which the land presumably would be of little value to a private owner, would not be expected to...