Inhabitants of Brookline v. Whidden

• Decision Date: 28 February 1918
• Citation: 229 Mass. 485
• Parties: INHABITANTS OF BROOKLINE v. RENTON WHIDDEN. SAME v. ATHERTON LORING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 485

INHABITANTS OF BROOKLINE v. RENTON WHIDDEN. SAME v. ATHERTON LORING.

Supreme Judicial Court of Massachusetts, Norfolk.

February 28, 1918

November 22, 23, 1917.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.

Way, Private. Municipal Corporations. Equity Jurisdiction, Mandatory injunction.

Where a private way fifty feet wide, leading from a public street to a pond belongs, as an easement granted by deed, to the owner of certain land, if the superintendent of streets of the town in which it lies, acting under Gen. Sts. c. 43, Section 83, (now R.L.c. 48, Section 99,) for the public safety and to protect the town from liability for injuries, because a traveller has been drowned in the pond, places a barrier across the entrance to the way, thus preventing its use with vehicles although leaving it accessible to pedestrians, and the barrier is maintained for many years, this does not affect the existence of the easement, and, if twenty-seven years after the erection of the barrier the town acquires by purchase and conveyance the land to which the right of way is appurtenant, the town acquires the right to use the private way over its full width for vehicles as well as for travellers on foot.

Where a town as the owner of certain land owns as appurtenant to it an easement of the right to use a private way fifty feet wide, and brings a suit in equity for a mandatory injunction to compel the removal of a substantial brick wall built nineteen feet into such private way, it is no defence, that the superintendent of streets of the plaintiff and a member of the board of selectmen having in charge the highway district that includes the right of way, at the request of the defendant and at the cost of the town, placed curbing on an intersecting street extending across into the private way owned by the town to the same extent as the defendant's wall and that the superintendent of streets, when asked by a contractor employed by the defendant whether he could lay a granolithic sidewalk over this nineteen foot projection into the private way, answered, "Yes," because these acts did not constitute a license by the town to interfere with the easement owned by it, which could not be relinquished nor extinguished by an act of any town officer not authorized by the town.

In a like suit brought by the same town against another defendant for obstructing the same private way by erecting a building extending into it, it was held that for the same reason it was no defence, that the defendant had obtained the usual permits for constructing his building and had told the clerks or officials of the town that he proposed to put it "in any position he wanted to on the street" and had some general talk with the town engineer and one of the selectmen.

In the same cases it was held that the defendants, having been aware of the existence of the indenture that created the right of way owned by the town and having been advised in a general way as to the state of their record title with reference to the easements in the private way when they built their obstructions, must be taken to have made these expenditures without excuse and under no misapprehension; and that, there being no suggestion that prompt action had not been taken when the matter came to the attention of the proper officers of the town, mandatory injunctions should issue ordering the defendants to remove the obstructions.

TWO BILLS IN EQUITY, filed in the Superior Court on January 29, 1914, by the town of Brookline against the owners of lots abutting on a private way or street called Essex Street constituting an extension of the public highway of that name in the part of Brookline called Longwood, the first suit, against the defendant Whidden, being brought to compel the removal of a brick wall extending into such private way, and the second suit, against the defendant Loring, being brought to compel the removal of a portion of a building of that defendant extending into such private way.

The two cases were referred separately to the same master, who heard the cases together and made a single report covering them both. Later the cases were heard upon the master's report by Callahan, J. The judge made a separate memorandum of findings in each case.

In the suit against Whidden his memorandum, after the introductory statement, was as follows:

"I rule that the plaintiff acquired by grant a right of way in that portion of Essex Street occupied by the defendant's wall, and that the easement was never completely extinguished by abandonment or otherwise.

"But, while I rule there was no sufficient evidence to warrant a finding that the plaintiff granted a license to the defendant to erect the wall, I also rule that the plaintiff, knowing that the defendant had in fact erected the wall, granted him an implied license to maintain the obstruction caused by it, by reason of its extension of the Ivy Street curbing into Essex Street in acquiescent harmony with the impeding structure. . . . I further find and rule that by continuing to maintain the obstruction and by developing the land on Essex Street back of it by grading and by planting it with shrubs and vines, the defendant completely executed the license granted to him by the plaintiff.

"I, therefore, rule that the easement has been so modified by the conduct of the parties as to extinguish it so far as it is obstructed by the wall complained of.

"In my opinion the bill should be dismissed, with costs." In the suit against Loring the memorandum, after the introductory statement, was as follows:

"I rule, that the plaintiff acquired by grant a right of way in that portion of Essex Street occupied by the defendant's building; that the easement was never extinguished by abandonment, or otherwise, and that, as to this defendant, it was never modified or diminished by waiver, executed oral license, or otherwise.

"I find as facts by inference that the building constitutes a substantial obstruction of the plaintiff's right of way and that the building was constructed by the defendant, not inadvertently, but with notice that the successors in title of Sears and Francis, or some of them, were likely to assert their interest in the dominant estate and to contest an invasion of their right.

"The plaintiff is entitled to a decree ordering the defendant to remove such portion of his building as extends beyond the westerly line of Essex Street and enjoining him from further obstructing, or causing to be obstructed, any portion of such street abutting his land."

Later by order of the judge final decrees were entered dismissing the bill against the defendant Whidden with costs to that defendant and, in the suit against Loring, ordering that defendant to remove such portion of his building described in the bill as extended beyond the westerly line of Essex Street and enjoining him from further obstructing or causing to be obstructed any portion of that street abutting upon his land, and ordering him to pay costs to the plaintiff.

In the suit against Whidden the town of Brookline appealed and in the suit against Loring that defendant appealed.

W. D. Turner for the town of Brookline. A. Lincoln, for the defendant Loring.

T. Hunt, for the defendant Whidden.

RUGG, C.J. These are suits in equity whereby the plaintiff seeks to have removed obstructions placed by each of the defendants in a private way known as Essex Street in the town of Brookline. The plaintiff, as grantee in deeds of two parcels of land one called the Amory Playground and the other Mason

Square, asserts proprietary ownership of rights of way in Essex Street. The cases were referred to a master, whose findings of fact must be accepted as true since there is no report of the evidence.

Summarily stated the material circumstances are that in 1827, by indenture duly executed and recorded, Ebenezer Francis and David Sears, being owners of large tracts of adjoining land, laid out along their boundary line a new road fifty feet wide, each contributing one half the required land. The description of the way, thrice repeated in the indenture, was that it extended from Brighton Road "southerly about one hundred and fifty rods until it comes to the pond." The recital in the indenture is that the way is for the mutual benefit and common use of Sears and of Francis as owners of tracts of land (including the several parcels owned by the parties hereto), and their respective heirs and assigns, and of all persons going to or from their respective tracts of land or any part thereof. This new way, known as Essex Street, was shown as extending to and beyond the pond in a series of published or recorded plans by different civil engineers between 1849 and 1885. That part of Essex Street between Brighton Road and Ivy Street became a public highway and respecting that no question now is raised. The controversy centres about that portion extending southerly from Ivy Street and beyond the pond. The estates of the defendants are on the southerly side of Ivy Street on opposite corners of Essex Street. This portion of Essex Street extending southerly from Ivy Street was a well defined, ordinary country road, and long before the ownership of the parties to the present suit, had been put in a condition safe for travel for persons and vehicles. It was open and dedicated to public use. At or near the pond it joined Freeman Street. On one side Essex Street was marked by a high hedge, along which next to the street was a well defined raised walkway suitable for use by pedestrians; on a part of the other side was a fence of stone posts and iron chains. The shore line of the pond was not immovable, but varied somewhat in location by reason of swamp, drainage, wet and dry seasons,...