Merry v. Priest

• Decision Date: 15 September 1931
• Citation: Merry v. Priest , 276 Mass. 592, 177 N.E. 673 (Mass. 1931)
• Parties: MERRY v. PRIEST et al.
• Court: Supreme Judicial Court of Massachusetts

276 Mass. 592

177 N.E. 673

MERRY

v.PRIEST et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Sept. 15, 1931.

Appeal from Land Court, Plymouth County; C. C. Smith, Judge.

Petition for registration of title to land by Hortense E. Merry in which Josephine A. Priest and others filed answers.

Order of decree for petitioner, and respondents appeal.

Affirmed.

A. S. Feinberg, of Plymouth, for appellants.

T. Weston, of Boston, for appellee.

WAIT, J.

This proceeding for registration of title to land was begun by petition in the land court filed October 28, 1912, by Hortense E. Merry, who alleged in his petition that he acquired title by deed dated March 20, 1912. He alleged that he owned in fee simple; and had no knowledge of any mortgage or incumbrance, or of any right, legal or equitable, either in possession, remainder, reversion or expectancy, in any other person. Names and addresses of all owners and occupants of adjoining lands, so far as known to him, were set out. Among them was that of Josephine A. Priest. She filed an answer on May 6, 1913, denying the allegations of the petition, and, in particular, setting up in defense that ‘she has a right of way over the premises described in the petition.’ The record is bare until in February, 1931, Hortense E. Merry Moved that Laura M. Merry, to whom he had conveyed in December, 1928, be substituted as the person in whose name title be registered. As of January 15, 1931, Harry W. Priest and Mary B. Sands were allowed to file an answer, which alleged that ‘they have free and open right of way leading from West Street to their property over the premises described in the petition,’ and further alleged that their right of way had been judicially established in proceedings held before the superior court in two cases named.

The judge of the land court found that, appurtenant to the land of the respondents Priest and Sands, there was a general right of way over the land sought to be registered, subject to the right of the petitioner and his successors in title to maintain reasonably well equipped gates at either end of the way over the locus, which the owners and occupants for the time being of the respondents' land are required to open and close in a reasonable manner when passing through, such way to be used in common with owners and occupants of the servient estate. Harry W. Priest had no title before 1929. In 1912 he tore down gates put up by the petitioner, and, in May, 1912, the latter filed a bill in equity to restrain him from interfering with such gates. In September, 1912, a master's report favorable to Priest's claim as set up here was filed, but it was never confirmed; and no decree was made in the case until March 8, 1926, when the bill was ‘dismissed under order of Court.’ No other final decree was made. Another bill was filed in 1914 by Josephine A. Priest against Merry and others in the course of the controversy over the right of way. This bill was disposed of by the same order and at the same time as that filed in 1912. Josephine A. Priest is dead. The respondents contend that the decrees dismissing the bills and the findings of the master constitute res judiciata which establish the respondents' claim. The decision in Farnum v. Brady, 269 Mass. 53, 168 N. E. 165, that dismissal under order of court such as took place here, although a final decree, does not have the effect of res judicata, is controlling here. The judge was right in ruling that the answer of res judicata was not sustained. See, also, Wight v. Wight, 272 Mass. 150,172 N. E. 335.Ansara v. Regan, 269 Mass. --, 177 N. E. 671, is not in point.

The respondents further contend that there was error in the rulings that they had the burden of proving the existence of the full right asserted by them in the way; and in the finding that the petitioner was entitled to maintain gates upon it. No deed creating the right of way was shown. There had never been a common owner of the premises of the petitioner and the respondents. It was admitted that any right rested upon prescription and that for many years owners of the respondents' land had passed over the petitioner's. Whether at any time gates or bars had been maintained was in dispute. It is to be noted that the allegations of the answer of Josephine A. Priest filed in 1913 and of the answer filed by the respondents in 1931 are not identical. The first asserts only a ‘right of way over the premises': the second asserts a ‘free and open right of way’ from West street. That street did not touch the petitioner's land. In these circumstances the...