Mahon v. Tully
| Decision Date | 07 June 1923 |
| Citation | 245 Mass. 571,139 N.E. 797 |
| Parties | MAHON et ux. v. TULLY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; George A. Sanderson, Judge.
Bill in equity by Peter J. Mahon and wife against John Tully to restrain the use by defendant of a passway over complainants' land. From interlocutory decrees overruling exceptions to master's report and dissolving a temporary injunction, and from the final decree dismissing the bill, complainants appeal. Affirmed.
The order of reference to the master was as follows:
‘And now it is ordered tha tthe above-entitled cause be referred to Hubert A. Murphy, Esq., as master, to hear the parties and their evidence eand report his findings to the court, together with such facts and questions of law as either party may request.’
John J. O'Hare, of Boston, for appellants.
Richard M. Walsh, of Boston, for appellee.
This is a bill in equity wherein the plaintiffs seek to have the defendant restrained from passing over their land with trucks, teams, automobiles and other vehicles. In the superior court the bill was dismissed after interlocutory decrees confirming the master's report and overruling the exceptions of the plaintiff thereto. The exceptions taken to the master's report relate to the failure of the master to state evidence as requested and to his failure to annex a plan used in evidence to such report. These exceptions were overruled properly. Haskell v. Merrill, 179 Mass. 120, 60 N. E. 485;Marra v. Bigelow, 180 Mass. 48,61 N. E. 272;Cook v. Scheffreen 215 Mass. 444, 102 N. E. 715. The case is therefore before this court for consideration upon the appeal of the plaintiffs from the final decree.
The material facts shown by the master's report in substance are as follows:
The plaintiffs and defendant own two contiguous parcels of land in Boston, fronting on Savin Hill avenue. The two parcels are southeasterly of Savin Hill avenue and the defendant's lies easterly of the plaintiffs' land. The frontage of the two parcels is a continuous curve and the form of the plaintiffs' land is substantially a triangle.
The defendant's land and the easterly part of the plaintiffs' land were formerly owned by one Sarah Baker. By deed dated July 1, 1865, Sarah Baker conveyed to Stephen R. Shldon and Ellen Sheldon (his wife) a parcel of land situated on the southerly side of Savin Hill avenue containing 5,044 square feet. This lot constitutes the easterly part of the plaintiffs' land and adjoins the defendant's land, which was a part of the Baker land before the sale of Baker to the Sheldons. The deed contains the following reservation:
‘Reserving to myself and my heirs and assigns a right of way near the southerly side of the house as heretofore enjoyed across the land hereby conveyed to my house and land easterly of the same.’
By deed dated December 11, 1884, George A. Sawyer, as administrator of the estate of Ellen Sheldon, under a license of the court conveyed to Mary F. Sparrow, wife of John Sparrow, this same parcel of land. This deed contains the following:
‘Subject to the right of way if any now exists near the southerly side of the house across said land to house and land formerly of Sarah Baker.’
December 18, 1885, Mary F. Sparrow acquired title by deed from the city of Boston to a parcel of land between the westerly houndary of the premises granted in the Baker deed to the Sheldon's and Savin Hill avenue. This deed contains the following clause:
‘Said premises are hereby conveyed subject to a right of way over the same for the use of the estates in the rear of said premises as the same existed December 2, 1872.’
These two parcels so acquired by Mary F. Sparrow made up a parcel triangular in shape having a frontage on Savin Hill avenue 137.5 feet, and an easterly side line of 117.5 feet adjoining the defendant's land.
On April 30, 1920, Mary F. Sparrow conveyed both of the parcels to Peter J. Mahon and Agnes F. Mahon. After the description of the first parcel the following language appears:
‘Subjuct to a right of way if any now exists near the sutherly side of the house across asid land to house and land formerly of Sarah Baker.’
And after description of the second parcel, being the parcel acquired from the city of Boston, appears the following language:
‘Said premises are hereby vonveyed subject to a right of way over the same for the use of the estates in the rear of said premises as the same existed December 2, 1872.’
On the rear of the plaintiffs' land and southerly of the way hereinafter referred to are two wooden sheds fomerly used as a barn and a carriage shed and lately let by the plaintiffs for keeping or storing automobiles. Prior to the erection of the present house on the plaintiffs' land, there stood for many years an old cottage house, which was torn down to allow the erection of the present house. The present house while covering a somewhat larger area is erected on substantially the same location. The old cottage house faced toward the south and on the passageway in question, the passageway passing very close to the cottage. The way leads easterly from Savin Hill avenue and extends across the land now owned by the plaintiffs to land now of the defendant. The cottage stood within a few feet of the boundary line between land now of the plaintiffs and land now of the defendant. An ancient cottage house still standing on the land of the defendant also is close to the boundary line between the two estates, so that the two cottages formerly stood side by side. The master finds:
‘That this way extending across land of the plaintiffs has been in existence for more than 50 years and has been and now is a clearly defined way, and has been considered and treated by the owners of the dominant and servient estates as the way referred to in the title deeds;’ that ‘this way was used by the defendant and his predecessors in title for over 50 years as the means of going to and from the old cottage and barn, and until the removal of the ledge on the front of the defendant's land about 1897 it was the only means of access to said cottage and the barn.’
He further finds:
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