Morse v. Rogers

• Decision Date: 23 October 1875
• Citation: 118 Mass. 572
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles P. Morse & another v. Thomas M. Rogers

118 Mass. 572

Charles P. Morse & another v. Thomas M. Rogers

Supreme Court of Massachusetts

October 23, 1875

[Syllabus Material] [Syllabus Material]

Worcester. Tort for the disturbance of an easement. Trial in the Superior Court, before Dewey, J., who, after a verdict for the plaintiffs, reported the case to this court in substance as follows:

The defendant owns a lot of land with a block of buildings thereon in Worcester, on the corner of Main and Pleasant Streets, on the northerly side of Pleasant Street. The plaintiffs own the lot on the northerly side of Pleasant Street, next westerly of the defendant's lot. Between the two lots is a passage way, extending from Pleasant Street between the plaintiffs' and the defendant's lots, and further north to Pearl Street. The boundary of said passage way was in controversy.

Charles Paine formerly owned all the lots marked from 1 to 9 inclusive on the plan, a copy of which was put in evidence and is printed in the margin, ^[*] and all the land covered by the passage ways on said plan, and in 1865 sold them at auction to various parties, and on December 1, 1865, made conveyances of the several lots to the purchasers. The plaintiffs and the defendant took their respective titles from Paine's grantees, and the questions raised in this report arise on the deeds from Paine. The deed from Paine of the plaintiffs' lot bounds it as follows: "Beginning at a point in the northerly line of said Pleasant Street, which is one hundred and ten feet and six inches westerly from the intersection of said northerly line of Pleasant Street with the westerly line of Main Street, and which point is also the point where said northerly line of Pleasant Street is intersected by the westerly line of a passage way fifteen feet in width, running from Pearl Street to Pleasant Street, the easterly line of which passage way is the westerly line of Calvin Foster's lot, upon which his brick block stands, and a line drawn in extension of said westerly line to said Pleasant Street; thence northerly by the westerly line of said passage way, seventy-nine feet, to a point where the westerly line of said passage way is intersected by the southerly line of a passage way twelve feet in width, running from said fifteen foot passage way westerly to land of George A. Bates; thence westerly by the southerly line of said twelve foot passage way, thirty-four feet, to a point which is the northeasterly corner of land this day conveyed by me to John G. Kendall; thence southerly by land so conveyed to said Kendall, eighty feet, to the northerly line of said Pleasant Street; thence easterly by the westerly line of said Pleasant Street, thirty-one feet, to the place of beginning. Being lot numbered 6 on plan, dated 'Worcester, November 24, 1865,' and to be recorded. Together with a right of way in common with others, to whom estates have been conveyed by me, over the above named passage ways as laid down and shown on said plan."

The deed from Paine of the defendant's lot contained the following as the description: "Beginning at the northeasterly corner thereof at a point in the westerly line of said Main Street, exactly opposite the centre of the brick wall which divides the store on the premises hereby conveyed from the store next adjoining on the north; thence running westerly in a straight line through the centre of said brick wall, one hundred feet, to the easterly side of a passage way fifteen feet in width running from Pearl Street to Pleasant Street, the easterly line of which passage way is the westerly line of Calvin Foster's lot, upon which his brick block stands, and a line drawn in extension thereof to said Pleasant Street; thence southerly by the easterly line of said passage way, forty-one feet and six inches, to the northerly line of said Pleasant Street; thence easterly by the northerly line of said Pleasant Street, ninety-five feet and six inches, to a point where said northerly line of said Pleasant Street is intersected by the westerly line of said Main Street; thence by the westerly line of said Main Street northerly, twenty feet and ten inches, to the place of beginning. Being lot numbered 5 on a plan dated Worcester, November 24, 1865, and to be recorded. Together with a right of way in common with others, to whom estates have been conveyed by me, over the above named passage way as laid down and shown on said plan."

Each of the other deeds of the other lots referred to said passage way as a "passage way fifteen feet in width running from Pearl Street to Pleasant Street, the easterly line of which passage way is the westerly line of Calvin Foster's lot, upon which his brick block stands, and a line drawn in extension of said westerly line to said Pleasant Street," and each of said deeds contained the phrase, "Together with a right in common with others, to whom estates have been conveyed by me, over the above named passage way as laid down and shown in said plan."

The distances given in each of the Paine deeds correspond with the figures on said plan. Before the action was brought, the defendant built a brick block, four stories high, on his lot and extending back on the northerly line of Pleasant Street ninety-eight feet and three inches from the...