Mckenzie v. Gleason

• Decision Date: 05 January 1904
• Citation: 69 N.E. 1076,184 Mass. 452
• Parties: McKENZIE v. GLEASON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 452

69 N.E. 1076

McKENZIE v. GLEASON.

Supreme Judicial Court of Massachusetts, Plymouth.

January 5, 1904

The descriptions in the deeds referred to in the opinion are as follows:

(1) 'A certain piece or parcel of land situated in that part of Wareham called Long Neck and adjoining a house lot of Thaddeus C. Baker, and bounded as follows: Beginning at the easterly corner of said Baker's lot, and runnins South 40º West, fourteen rods to a cedar post; thence North 35 1/4º West sixteen rods to a stake and stones near an old road leading to the shore; thence by said road North 88 3/4º East thirteen rods to a stake by a pair of bars; thence South 60 1/2º East seven rods to bound first mentioned; containing one hundred and fifteen rods more or less.'

(2) 'A certain lot of land situated in that part of said Wareham called Long Neck and on the southerly side of the state highway, and is bounded as follows: Beginning at a stake at the northeast corner of said lot and the northwest corner of a private road used by Thaddeus C. Baker and on the southerly line of the state highway: thence running south 69º West by the southerly side line of the state highway two hundred and twenty feet to a stake at the easterly side of a private road; thence South 11º 45' East by said private road six feet; thence South 81º 30' East by the northerly side of said private road forty six feet; thence due east also by the northerly side of said private road one hundred and seventy-three and 5-10 feet to the westerly side of the private road first mentioned used by Thaddeus C. Baker aforesaid; thence North 9º West by the westerly side of said private road ninety-two and 5-10 feet to the first mentioned bound. Containing forty-one square rods more or less.'

COUNSEL

H. H. Baker and Charles F. Chamberlayne, for plaintiff.

George W. Stetson and Harry Le Baron Sampson, for defendant.

OPINION

BRALEY, J.

The question presented for decision is whether the plaintiff under the boundaries in his first deed, acquired title to the southerly half of the way; and, unless some imperative principle of law requires that the plaintiff cannot have any relief, a construction ought to be given to the deed which will not compel him to use his farm in parts, or exclude him from access to the county road.

The way is either included or excluded by the description in the deed. It cannot reasonably be held, under the language used to be in part a monument, and in part merely descriptive for the purpose of identifying the line that runs 'by the road' from stake to stake. If we exclude the road, the language used runs the line from stake to stake, following the general course of the road as shown on the plan, but in no instance extending beyond the original line so drawn; or, in other words, the land of the plaintff does not reach to or abut on the road. Motley v. Sargent, 119 Mass. 231, 235. The word 'abuttal' means the same as 'boundary,' unless there are words that limit its meaning; and, if the plaintiff abuts on the road, then he is bounded by the road which is included. 'The road is an abuttal, not a monument; and, if the deed does not say on which side, it should be taken to mean the center.' Shaw, C.J., in Smith v. Slocum, 9 Gray, 36, 37, 69 Am. Dec. 274. And the words 'on the county road' and 'by said road' have been so construed by this court. O'Connell v. Bryant et al., 121 Mass. 557; Dean v. Lowell, 135 Mass. 55, 60.

A grantee whose land is bounded by a way owned at the time by his grantor may acquire the right to use that way, not only because he gains a fee in half of it, but also, being so bounded, his grantor would be estopped to deny the existence of the way. Stark v. Coffin, 105 Mass. 328, 330. In the description in the deed, if it were not for the use of the terms 'stake and stones near an old road' and 'stake by a pair of bars,' no question could arise but that the way was included; and the true test is, what was the intention of the grantor under all the circumstances? It was said in Clark v. Parker, 106 Mass. 554, 556 'in the construction of deeds where lands are bounded on or by a way, either public or private, the law presumes it to be the intention of the grantor to convey the fee of the land to the center of the way if his title extended so far. This presumption is, of course, controlled whenever there are words used in the description showing a different intention. But it has been held that giving measurement in the deed of side lines which reach only to the outer line of the way are not alone sufficient to overcome it.' The earlier decisions are apparently in conflict with such a rule of construction. 'In some opinions of this court it has indeed been implied or asserted that a boundary upon a road or street passed no title to the land under it. But in the more recent decisions the general rule has been repeatedly declared, and must now be regarded as the settled law of the commonwealth, overruling whatever is irreconcilable in the earlier cases, that a deed bounding land generally by a highway, with no restrictive or controlling words, conveys the grantor's title to the middle of the highway'--Gray, C.J., in City of Boston v. Richardson, 13 Allen, 146, 152. Phillips v. Bowers, 7 Gray, 21, 24; Crocker v. Cotting, 166 Mass. 183, 187, 44 N.E. 214, 33 L. R. A. 245. And it is now too late to doubt the general rule as to boundaries by or on a street or way, either public or private, which may be stated in the language used in Peck v. Denniston, 121 Mass. 17, 18, as follows: 'The general rule is well settled that a boundary on a way, public or private, includes the soil to the center of the way, if owned by the grantor; and that the way, thus referred to and understood, is a monument which controls courses and distances, unless the deed, by explicit statement or necessary implication, requires a different construction.' Any argument that may be advanced by the defendant founded upon the fact that the side lines run in the first instance to a stake and stones near the way, and in the second from a stake...