Hill v. Taylor

• Decision Date: 08 December 1936
• Citation: 296 Mass. 107,4 N.E.2d 1008
• Parties: HILL v. TAYLOR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 107

4 N.E.2d 1008

HILL v. TAYLOR et al.

Supreme Judicial Court of Massachusetts, Barnstable.

December 8, 1936

[Copyrighted Material Omitted]

Exceptions from Land Court, Barnstable County; Davis, Judge.

Petition for registration of title to land by Clara A. Hill to register title to land, opposed by Warner V. Taylor and others. On respondent Taylor's exceptions to a land court judge's denial of his requests for rulings and granting of certain requests for rulings by petitioner.

Exceptions overruled.

O. C. Boothby, of Boston, and F. E. Smith, for petitioner.

V Taylor and C. M. Ganson, both of Boston, for respondent Warner V. Taylor,

CROSBY, Justice.

This is a petition to register title to three parcels of land situated at Megansett, in the town of Falmouth. The petitioner also claims as appurtenant to the land certain rights of way over Cedar Avenue, leading from the road, shown on a plan as ‘ Boulevard,’ to the shore. A Land Court examiner filed a report and an abstract of title. At a hearing before a judge of the Land Court Warner V. Taylor (herein called the respondent) excepted to the denial of his requests for rulings and to the granting of certain requests for rulings filed by the petitioner. The exceptions relate to the location of Cedar Avenue as the boundary of the petitioner's land, and her rights in that avenue.

The findings of fact made by the judge of the Land Court will stand if warranted by the evidence with justifiable inferences.‘ The general finding in favor of the petitioner imports a finding of all subsidiary facts and the drawing of all permissible inferences essential to that conclusion.’ United States Leather Co. of Massachusetts v. Lynn (Mass.) 199 N.E. 313.Although the case presents for interpretation the construction of written instruments, the significance of the words therein is to be considered in view of the time and circumstances in which they are used, and the intent of the parties is usually a matter of fact. Accordingly, weight must be given to the findings made. Erickson v. Ames, 264 Mass. 436, 441, 163 N.E. 70; Sutcliffe v. Burns (Mass.) 1 N.E.(2d) 23.

Besides other facts, the trial judge found that the land sought to be registered consists of three parcels-one is a lot bounded northerly on land of the respondent by the southerly line of Cedar Avenue, a curving way; another is an adjoining lot on the south that extends from the boulevard to a point near high water mark; and a third is a parcel of upland and flats running westerly from said point near high water mark, and bounded northerly on land of the respondent, being the southerly end of Cedar Avenue, and flats of the respondent on which there is an ancient wharf.

It appears from the record that ‘ There was an old way, known as the road to the wharf, leading from a public way at some distance to the east across the present land of the petitioner to a point about opposite his [sic] present house, and thence down through a steep gully to the wharf. From about opposite the house an old logging road branched from the wharf road southerly to and across what is now the boulevard or present town way. The wharf, which has long ceased to exist as a wharf, was once used by coasting schooners and packets, but not all for over fifty years; and there has been no use of the road within that period as a means of access to the wharf. It was a private road, and there appear to be no rights in it except for the parties to this case * * *

There is on the ground a traveled way as shown on the filed plan which follows the course of the old logging road from the present town road to a point opposite the respondent [sic] house, and thence down to the shore follows the old road to the wharf. The road to the wharf extended southerly to the northerly line of the petitioner's third parcel, which had by grant an appurtenant privilege of the wharf.

‘ February 9, 1903 Mar. Mary Donkin, then owner of both the land now of the respondent and of the remaining land of the petitioner, conveyed to her sisters-in-law what is now the petitioner's first parcel, described as bounding by the southerly line of Cedar Avenue. Mrs. Donkin had a plan made by E. L. and C. L. Hayward, Engineers, . . . showing the parcel conveyed February 9th as bounding northerly by Cedar Avenue, a way between the boulevard and the shore laid out on a consistent curve, with courses and distances from the boulevard to the stone monument near the shore which marks the southwest corner of the petitioner's first parcel and the northeast corner of her third parcel. The description in the deed of February 9th was taken from this plan, but it is not referred to and was not recorded until 1920. The Cedar Avenue shown on this plan follows substantially the course of the travelled way. It is however twenty feet wide whereas the travelled way is only about five feet wide, and it makes a regular curve thereby diverging from the travelled way in two places.’

From a point of about eighty feet west of the boulevard for a distance of about seventy feet the southerly line of the travelled way is about a foot to the south of the southerly line of Cedar Avenue of the recorded plan, and at the westerly end the travelled way leads by irregular lines, within the limits of the recorded plan avenue, up through a steep gully with bayberry bushes and gravelly banks of either side, to near the top of the rise, and then swings to the north for a distance of about seventy-five feet, making a sharp curve of which the furthest distance of its northerly line from the northerly line of the Cedar Avenue of the plan is about fifteen feet.

‘ February 19, 1903, Mrs. Donkin conveyed to one Noyes the second parcel now of the petitioner. The land is described as bounding west and east of the first parcel, northerly by the southerly line of ‘ Cedar Avenue.’ The courses and distances given are those of said plan, but the plan is not referred to and . . . was not recorded until 1920.'

On August 25, 1920, ‘ Mrs. Donkin, still owner of the fee in the way (whether the travelled way or the Cedar Avenue of the plan) and adjoining land now of the respondent to the north, made a grant to her sisters-in-law, then owners of the petitioner's first parcel, of a right of way as appurtenant to said first parcel from any buildings thereon to and from the boulevard over Cedar Avenue, as shown on said plan which was then recorded with the grant. This grant was upon condition that, whereas because of the (land locked) location of their land (said first parcel) the grantees were unable to use any other way for a driveway, but it was possible that they or their heirs or assigns might purchase adjacent land and construct a driveway thereover to the boulevard, in the event that they should so construct such driveway the grantees, their heirs or assigns, shall release to the grantor, her heirs or assigns, any rights of way under this grant to and from the boulevard, but in any event shall have as appurtenant to said grantee's land (said first parcel) a right of way therefrom to the shore.’

‘ The engineers agree that the recorded plan of Cedar Avenue was not intended as a location thereof from actual survey, and the original Hayward field...