Hodgkins v. Bianchini

• Citation: 323 Mass. 169,80 N.E.2d 464
• Parties: HODGKINS et al. v. BIANCHINI et al.
• Decision Date: 02 July 1948
• Court: United States State Supreme Judicial Court of Massachusetts

323 Mass. 169

80 N.E.2d 464

HODGKINS et al.

v.BIANCHINI et al.

Supreme Judicial Court of Massachusetts, Essex.

July 2, 1948.

Appeal from Superior Court, Essex County; Pinanski, Judge.

Action by Susie May Hodgkins and another against Salvatore J. Bianchini and another for a declaratory decree to determine plaintiffs' rights and those of defendants in a parcel of land. From the final decree, defendants appeal.

Decree reversed, and decree ordered entered in accordance with opinion.

Before QUA, C. J., and LUMMUS, DOLAN, SPALDING, and WILLIAMS, JJ.

M. I. Bernstein, of Gloucester, for plaintiffs.

J. R. Cahill, Jr., of Gloucester, for defendants.

SPALDING, Justice.

The plaintiffs in these proceedings seek a declaratory decree to determine their rights and those of the defendants in certain land in Rockport, hereinafter called the ‘Lane.’ The case was referred to a master and his report, to which there were no objections, was confirmed by an interlocutory decree entered by consent of the parties. The case comes here on the defendants' appeal from a final decree.

Facts found by the master include the following: The plaintiffs are the owners of land which includes a parcel called the ‘Lane.’ The ‘Lane’ is the sole means of access to the public highway (South Street) from a parcel of land owned by the defendant Charles Bianchini, hereinafter called the defendant. It is approximately twenty-one hundred feet long and about thirty-three feet wide, and runs southwesterly from South Street. The ‘Lane’ and the land of the defendant were once owned by one Francis Pool. On October 2, 1820, Pool conveyed the parcel now owned by the defendant to George and James Gott by a deed which, after describing the premises, recited, ‘Together with a privilege of a cart road to pass to and from the main street to the said premises at all seasons of the year.’ The property over which the right to pass and repass was granted is the ‘Lane’ mentioned above. On October 30, 1820, twenty-eight days later, Pool conveyed the ‘Lane’ to one Andrew Lane, from whom the plaintiffs derive their title, by a deed which contained the following language: ‘reserving to myself and my heirs, also to George Gott and James Gott junior and their heirs a privilege of passing and repassing to and from our said lands through the aforesaid premises at all times without any hindrance or molestation whatsoever our putting up the bars or shutting the gates¹ whenever we pass through the said premises.’ The Gotts were not parties to this deed. The plaintiffs own land on both sides of the ‘Lane’ and also land ‘beyond the farther end of the ‘Lane’ from South Street.'

It appears that the lands bordering upon the ‘Lane’ were formerly used for pasturage or for crops. ‘In addition to the use of the ‘Lane’ for * * * a place over which cattle would go to pasture, the ‘Lane’ has been used during the past twenty-five or more years at various times by an owner of land lying on the opposite side of the ‘Lane’ * * * for carting gravel with motor vehicles, and horse drawn vehicles.' The grantors of the defendant first used a motor vehicle on the ‘Lane’ in 1931. The defendant acquired title to his property in October, 1946, and since that time has been selling gravel from a gravel pit thereon to his father Salvatore, also a defendant. Salvatore and those to whom he has sold the gravel have transported from fifteen to twenty loads of gravel per day over the ‘Lane.’ Some of the loads were transported in dual wheel trucks which widened the worn part of the ‘Lane’ by approximately two feet. It became necessary to place gravel on portions of the ‘Lane’ in order that such trucks might be used. The ‘gravelling’ was done by Salvatore. ‘Because of the amount of gravel needed and required to be placed in the ruts and on the surface of the ‘Lane’ and the nature of the use of the way by heavy vehicles, in dry weather, dust is created and is blown onto the grass grown within the ‘Lane’ and into the dwelling house of the plaintiffs.'

At the present time there are between forty and fifty cows pastured by the plaintiffs on the lands adjacent to the ‘Lane.’ There is a gate (three hundred sixty feet from South Street) on the ‘Lane’ which has been ‘maintained where now located during the period of time within the memory of old residents of Rockport.’ On the northwesterly side of the ‘Lane’ between the gate and South Street are farm buildings, where the cattle are kept, and the plaintiffs' dwelling. The cows pass through this gate and then, without being driven, pass onto and over the ‘Lane’ into the adjoining fields. In the latter part of the afternoon the cows gather at this gate, thereby interfering with, and causing considerable delay to, those travelling on the ‘Lane’ with motor vehicles. On many occasions the defendants or their employees have failed to close this gate, with the resultthat the cows have wandered onto the public highway.

The final decree declared (1) that the use of the ‘Lane’ by the defendants is limited to the terms of the easement contained in the original deed of October 2, 1820, to the Gotts, namely, ‘a privilege of a cart road to pass to and from the main street’ to the premises now owned by the defendant; (2) that the plaintiffs are entitled to limit the use of the easement to the ‘confines of the roadway therein, namely, the cart road’; (3) that the plaintiffs are ‘entitled to require the defendants to put up the bars and shut the gates when passing to and from South Street over the ‘Lane”; and (4) that the transporting of loam and gravel over the ‘Lane’ ‘exceeds any privilege shown to have been acquired, amounts to a new servitude, and overloads the easement.'

While that part of the final decree which declared that the defendants' use of the ‘Lane’ was limited to the terms of the original deed to the Gotts was not erroneous, it needs clarification. The plaintiffs apparently take the position that the defendants' use of the way with motor vehicles is not permitted under the decree. The defendant, on the other hand, argues that such use is not forbidden. Unless, therefore, the rights of the parties are defined more precisely, there is little likelihood that the controversy between them will be settled by this litigation.

The rights of the defendant with respect to the ‘Lane’ were established by the deed of October 2, 1820, from Pool to his predecessors in title, the Gotts. These rights were not affected by anything contained in the subsequent deed of October 30, 1820, conveying the ‘Lane’ to the person from whom the plaintiffs derive their title. The Gotts were not parties to that deed. ‘An easement cannot be imposed by deed in favor of one who is a stranger to it.’ Hazen v. Mathews, 184 Mass. 388, 393, 68 N.E. 838, 839;Murphy v. Lee, 144 Mass. 371, 374, 11 N.E. 550. We assume, as the defendant has argued, that the language in the later deed created an exception rather than a reservation (see Stockwell v. Couillard, 129 Mass. 231, 233), but that does not make the principle just stated any the less applicable. Kronoff v. Worcester, 234 Mass. 254, 259, 260, 125 N.E. 394. The rights of the defendant were neither diminished nor enlarged by that deed.

The language ‘Together with a privilege of a cart road to pass to and from the main street to the said premises' used in the earlier deed constituted, we think, a grant of a general right of way for vehicles and did not restrict its use to horse drawn vehicles or limit the way to the width of vehicles then in common use. Crosier v. Shack, 213 Mass. 253, 256, 100 N.E. 607, L.R.A.1918A, 260;Mahon v. Tully, 245 Mass. 571, 577, 139 N.E. 797;Swensen v. Marino, 306 Mass. 582, 29 N.E.2d 15, 130 A.L.R. 763. In the case last cited it was said at page 587 of 306 Mass., at page 18 of 29 N.E.2d, ‘We should be very slow to hold that even ancient rights of way, not expressly restricted as to the type of vehicle * * * could not be employed at all for the means of transportation in common use by a succeeding generation.’ See Doody v. Spurr, 315 Mass. 129, 133, 51 N.E.2d 981;Sakansky v. Wein, 86 N.H. 337, 341, 169 A. 1;Restatement: Property, § 484. See also note, 53 A.L.R. 553. The case at bar is plainly distinguishable from Clarkin v. Duggan, 292 Mass. 263, 198 N.E. 170, 171, on which the plaintiffs rely. Since in that case the grant of the right of way was ‘with teams only’ it obviously did not include automobiles.

It does...