Jones v. Stevens

• Decision Date: 13 June 1931
• Citation: 177 N.E. 91,276 Mass. 318
• Parties: JONES v. STEVENS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 318

177 N.E. 91

JONES

v.STEVENS.

Supreme Judicial Court of Massachusetts, Norfolk.

June 13, 1931.

Exceptions and appeal from Land Court, Norfolk County; Corbett, Judge.

Petition to register title to land by Joseph F. Jones against Charlotte M. Stevens. Decision for respondent, and petitioner brings exceptions and appeals.

Exceptions overruled, and petition dismissed.

W. I. Morse, of Boston, for petitioner.

M. F. Hall and K. D. Johnson, both of Boston, for respondent.

SANDERSON, J.

This is a petition to register title to a tract of land, hereafter called the locus, situated about two hundred feet west of a public way, known as Turnpike street, in Canton. The respondent is the owner of three parcels of land shown as A, B and C on a plan filed with a pending petition brought by her to register the same. She claims as appurtenant to lot C a right of way over the locus. Lot C is separated from the locus by a strip of flowed land owned by the Plymouth Rubber Company. The locus, as well as parcels A, B and C and other land, is a part of a ninety-six acre farm which was owned by Paul Wentworth in 1798. The judge of the land court found that through this farm there was a road extending from the northeast portion thereof from what is now known as Turnpike street southerly over the locus to a point four hundred or more feet west of lot C, and then continuing southeasterly over lot B to Turnpike street, and that the westerly side of lot C is about one hundred and thirty feet from the southeasterly corner of the locus. A brook ran through the farm in a somewhat westerly direction from Turnpike street and crossed another highway at which a dam was constructed causing portions of the farm and other lands, as well as parts of the road, to be flowed. The road between the locus and lot B is generally under water, thus separating by a strip of water the locus from parcels B and C. The parts of the farm flowed were conveyed in 1836 by Samuel Tucker, who owned about seventy acres of the Wentworth farm, to the Neponset Company, a predecessor in title of the Plymouth Rubber Company. After this sale Tucker still owned the locus, lot C, and other lands of which A and B are parts. Shortly after the execution of this deed Samuel Tucker died, and on September 5, 1838, his executor, Elias Tucker, sold lot B. On March 16, 1839, the same executor conveyed lot C to Aaron E. Tucker at public auction, under a license of the probate court. This lot was conveyed ‘with a right of way from the Stoughton Turnpike road passing the dwelling house of said deceased (Samuel Tucker) thence over the usual traveled road leading to the land hereby conveyed.’ The respondent's contention is that this right of way is appurtenant to lot C and that it extends over the petitioner's land substantially as shown on the blueprint.

The judge of the land court, who took a view of the premises, found that there is a well defined was over the locus; that it passes the house of Samuel Tucker, which is still standing, and extends to the pond; that across the pond it continues over lot B to Turnpike street and is well defined over this lot; and that while there are marks of travel leading toward parcel C from a point on Turnpike street north of parcel B, he was unable to find that they extended to parcel C. He found that considering the Tucker deed in the light of all the evidence and the view, the ways as located on the blueprint is the one referred to in the deed; that while it did not touch the land of the respondent it passed nearby and was evidently the road used in connection with all parts of the farm; and that as this was an express grant of a right of way, no way by necessity could be implied from the deed which contains that grant. He stated that, generally speaking, an appurtenant right of way is indispensable for the reasonable enjoyment of land and that in this case without granting the purchaser a way to reach the land from a public highway no sale could probably have been made. He found that the fact that the land now owned by the Plymouth Rubber Company, separating the locus from lot C, is usually flowed by the waters of the pond, did not invalidate the grant of a right of way appurtenant to parcel C over the locus. He stated that while there was some evidence of recent user of the way by the respondent, there was no evidence as to what use, if any, was made of it from the time of its creation, and, however that might be, nonuser, without more, did not defeat the easement by grant; that no evidence of abandonment was introduced. He found that the locus is subject to the right of way set forth in the executor's deed and that it is located substantially as shown on the blueprint. He made no ruling or finding whether the respondent has or has not, as appurtenant to lot C, a right of way by either express or implied grant over the land or water which lies between that land and the premises sought to be registered, stating that that question was not open in this case.

The petitioner contends that the way granted in the deed of Elias Tucker to Aaron Tucker was not the way extending through the locus but was another way. The evidence is not reported and we are bound by the findings of fact made by the judge of the land court. Marvel v. Cobb, 204 Mass. 117, 118, 90 N. E. 413;Mitchell v. Cobb, 220 Mass. 60, 107 N. E. 388;Bessey v. Ollman, 242 Mass. 89, 91, 136 N. E. 176;Bucella v. Agrippino, 257 Mass. 483, 486, 154 N. E. 79;Erickson v. Ames, 264 Mass. 436, 441,162 N. E. 70. He was unable to observe at the view the nature of the locality, and could properly infer that the road shown on the petitioner's blueprint was generally used for all purposes connected with the farm. The way described in the deed to Aaron Tucker was descriptive of the road extending through the locus. The language of the deed is not applicable to a way which does not pass ‘the dwelling house of said deceased. * * *’ The contention of the petitioner, that the words ‘with a right of way from the Stoughton Turnpike road passing the dwelling house of said deceased’ refer to the turnpike itself, cannot be sustained. The words ‘thence over the usual traveled road’ indicate that the words immediately preceding are descriptive of the direction in which the way granted ran. Moreover, the turnpike road did not pass the dwelling house of Samuel Tucker. The finding and ruling of the judge, that the way granted is the road extending across the locus, cannot be said to be erroneous.

It is contended by the petitioner that the grant of a right of way by the executor of Samuel Tucker was in excess of his powers. The license was in general terms ‘to sell and convey so such of the real estate of the said deceased as will produce said sum ($79.38) with incidental charges.’ The sale as made under the license was valid, Rev. St. 1836, c. 71, Yeomans v. Brown, 8 Metc. 51, 58,Norton v. Norton, 5 Cush. 524, and the conveyance of lot C with a right of way was not broader than the powers conferred by the license. In Baker v. Willard, 171 Mass. 220, 50 N. E. 620,40 L. R. A. 754, 68 Am. St. Rep. 445, the license empowered the executor to sell only a specific parcel of real estate.

In 1863 the land now owned by the petitioner was partitioned by order of the probate court among the heirs of Samuel Tucker. The owner of lot C assented to the return of the commissioners. No mention of the right of way appurtenant to lot C was made in the petition or in the return filed by the commissioners. The petitioner contends that the respondent, whose predecessor in title assented to the partition proceedings, is now estopped from asserting her claim to an easement. This contention cannot be sustained. The right of way if appurtenant to lot C was not affected by...