Humphrey v. Walker

• Decision Date: 14 September 1943
• Citation: 314 Mass. 552,50 N.E.2d 783
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOSEPH MALCOLM HUMPHREY v. WILLIAM WALKER & another.

314 Mass. 552

50 N.E.2d 783

JOSEPH MALCOLM HUMPHREY v. WILLIAM WALKER & another.

Supreme Judicial Court of Massachusetts, Middlesex.

September 14, 1943

May 12, 1943.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Land Court, Appeal. Way, Private: location. Real Property, Boundary.

A decision by the Land Court based "on all the evidence" must stand on appeal unless error of law appeared from an examination of the decision itself or of certain plans and documents incorporated in the decision by reference and sent up with the printed record; evidence and other documents not so incorporated were not before this court as a part of the record, although sent up with it.

There was error in a decision by the Land Court fixing a right of way in a location shown on one plan rather than in a somewhat different location shown on another plan where the deed by which the right of way was created described it as "right of way, designated on" the second plan.

On appeal from a decision by the Land Court, error in findings by the judge fixing certain boundaries was not shown where their determination was not conclusively governed by anything included in the decision but rested in part on evidence not incorporated therein and not before this court.

PETITION, filed in the Land Court on October 31, 1941. The case was heard by Smith, J.

E. W. Hadley, for the respondents. L. B. Jones, for the petitioner.

QUA, J. This is a petition for the registration of title to a parcel of land on the easterly side of Walden Street in Concord. The respondents, as the owners of parcels of land adjoining the petitioner's land on the east and north, appeal from a decision ordering registration subject to and with the benefit of rights in a private way referred to in the decision and in a deed hereinafter mentioned as "an old road" and running along the northerly side of the petitioner's parcel.

The respondents contend that there was error in the decision in several particulars which are hereinafter stated and dealt with in turn. Since the case comes here by appeal and not by bill of exceptions, neither the evidence as a whole nor the substance of it is before us, and the decision, which purports to rest "on all the evidence," must stand unless error appears from an examination of the decision itself. Bacon v. Kenneson, 290 Mass. 14 , 15. McCarthy v. Lane, 301 Mass. 125 , 127. Boston v Lynch, 304 Mass. 272 , 273, 274. Boston v Cable, 306 Mass. 124 , 126. Holcombe v. Hopkins, ante, 113, 116.

1. The respondents contend that there was error in the decision in fixing the location of the way, over which they have the right of passage appurtenant to their parcel lying easterly of the petitioner's land, by reference to a way shown by broken lines on the plan filed with this petition instead of by reference to a certain recorded plan originally made in 1917 and apparently added to in 1922, upon which the respondents contend their rights are based. So far as we can judge from inspection of the plans the way, or ways, as shown on these two plans do not exactly correspond in location, the most important difference being that the way shown on the recorded plan divides into two curving branches or forks as it approaches Walden Street and at a distance of (roughly) about one hundred feet therefrom, leaving between the branches a piece of land of generally triangular shape bounded by the two branches of the way and by Walden Street and measuring about one hundred feet on Walden Street, while the way shown on the plan filed with the petition does not divide in this manner. The advantage of the two branches would seem to consist principally in furnishing a more convenient entrance and exit between the street and the rather narrow way to persons coming or going in either direction on Walden Street.

In our view there was error in respect to this matter which appears on the face of the decision when the decision is read in connection with the plans and documents referred to therein and to be considered part thereof, which have come to us with the printed record. See Sheehan Construction Co. v Dudley, 299 Mass. 48 . In his decision the judge shows that the title of the respondents to the parcel east of the petitioner's land is derived through a deed from one Cotter to one Blake, dated February 18, 1922. Cotter was then the owner of a large tract out of which came the parcel of the petitioner as well as the parcel of the respondents lying next easterly thereof. The...