Motley v. Sargent

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Devens, J.
• Citation: Motley v. Sargent, 119 Mass. 231 (Mass. 1875)
• Decision Date: 28 December 1875
• Parties: James M. Motley v. Cyrus Sargent

119 Mass. 231

James M. Motley v. Cyrus Sargent

Supreme Court of Massachusetts

December 28, 1875

[Syllabus Material]

Suffolk. Tort for breaking and entering the plaintiff's close being a passage way about four feet wide, bounded northerly on Elm Street in Boston, and lying between other land of the plaintiff on the west and land of the defendant on the east.

At the trial in the Superior Court, before Wilkinson, J., the defendant admitted acts done by him on the land, not authorized by an easement in the passage way, and the only issue was whether the plaintiff was the owner in fee of the whole of the passage way, or whether the defendant was the owner in fee of one half thereof.

In 1812, Zebulon Clapp was the owner of the parcels of land now owned by the plaintiff and by the defendant, with the passage way in question lying between them. The plaintiff claimed title through the following conveyances:

In 1818, Clapp's executor conveyed to William W. Motley a parcel of land bounded northerly on Elm Street, twenty-two feet; easterly on a passage way, thirty-seven feet eight inches; southerly on land of the heirs of Isaac Cutter twenty-one feet ten inches; and westerly on land late of Andrew Oliver, there measuring forty feet; with the free use of the well and pump on land conveyed by Zebulon Clapp to Amos Binney, on the east side of said passage way, paying one half of the expense of keeping the same in repair. It was admitted that said deed duly conveyed the estate described therein; and that by a subsequent conveyance the estate came to one Mary Motley.

In 1853 and 1855, the heirs of Zebulon Clapp quitclaimed their right title and interest in and to said passage way to Mary Motley, whose heirs, in 1864, conveyed the passage and the lot on the west, by one description, to the plaintiff.

The defendant claimed title to the fee of one half of the passage way through the following conveyances:

In 1812, Zebulon Clapp conveyed to Amos Binney a parcel of land "bounded northerly on Elm Street, seven feet four inches; easterly on Brattle Street, there measuring thirty-five feet four inches; southerly on land of the heirs of Isaac Cutter, seventeen feet five inches; and westerly on a passage way, there measuring thirty-four feet ten inches; or however otherwise bounded, with the building thereon standing, and the free use of said passage way in common with myself, my heirs and assigns, reserving to myself, my heirs and assigns forever, a mutual privilege in the well and pump standing at the northwesterly corner of the above described land, which well shall never be built upon without the consent of me the said Clapp, or my heirs and assigns; hereby also granting unto said Binney all my right, title and interest in or to a small strip of land adjoining the north end of the land above described, taken by the town to widen Elm Street."

In 1848, the heirs of Binney conveyed to Atkins A. Clark "that lot of land bounded northerly by Elm Street, seven feet seven inches; easterly by Brattle Square, thirty-four feet; southerly by a line through the centre of the brick partition wall, fifteen feet three inches; and westerly by a passage way, thirty-three feet ten inches, be all or any of said measurements more or less, together with the free use and privilege of said passage way.... Said lot of land is shown on a plan made by Alexander Wadsworth, March 10, 1848, a copy whereof is hereon indorsed." This plan corresponded to the measurement in the deed.

In 1858, Clark conveyed to the defendant by the same description as in the deed of the heirs of Binney to him.

The judge ruled that the defendant was the owner of the fee of one half of the passage way, and ordered judgment for the defendant; and the plaintiff alleged exceptions.

Exceptions overruled.

C. R. Train & F. S. Hesseltine, for the plaintiff. The intent of the parties, that the grant of the lot on the east of the passage way should extend only to the side of the way, appears by the careful and minute description, in feet and inches, of the front line of the lot on Elm Street, between Brattle Square and the way. This measurement indicates that a great degree of accuracy was sought and used by the parties to the deed. The shortness of the line, seven feet four inches, which takes in no part of the passage way, precludes the idea that it was the intention to convey nine feet eight and three fourths inches to the centre of the way; and where the measurement, by feet and inches, indicates great care, and the line is as short as this, it is evident that so great a mistake could not have been made. The general rule, that when known monuments are referred to as boundaries they must govern, yields when it is evident that no mistake in the measurement can reasonably be supposed to have been made. Davis v. Rainsford, 17 Mass. 207. Tyler v. Hammond, 11 Pick. 193. Brainard v. Boston & New York Central Railroad, 12 Gray 407. Cole v. Haynes, 22 Vt. 588.

The intent to convey only to the side of the passage way also appears by the words following the description of the lot, "and the free use and privilege of said passage way in common with myself, my heirs and assigns forever." By necessary implication, this grant of an easement over the way excludes any greater title to it, and makes clear the intention to reserve the fee.

It also appears in the words "reserving to myself, my heirs and assigns forever, a mutual privilege in the well and pump," &c. This makes clear the intention to grant the fee of land on the east of the way, reserving an easement in it as to the well there situated, and to retain the fee of the passage, and grant an easement over it. The grantor grants the fee of one, reserving an easement, and grants an easement over the other, reserving the fee. Codman v. Evans, 1 Allen 443.

It still further appears in the words, "hereby also granting unto said Binney all my right, title and interest in and to a small strip of land adjoining the north end of the land above described, taken by the town to widen Elm Street." This clearly indicates that it was understood that "the land above described" was limited by the description to the...