Mt. Holyoke Realty Corp. v. Holyoke Realty Corp.

• Decision Date: 15 September 1933
• Citation: 284 Mass. 100,187 N.E. 227
• Parties: MT. HOLYOKE REALTY CORPORATION v. HOLYOKE REALTY CORPORATION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 100

187 N.E. 227

MT. HOLYOKE REALTY CORPORATION

v.HOLYOKE REALTY CORPORATION et al.

Supreme Judicial Court of Massachusetts, Hampden.

Sept. 15, 1933.

Appeal from Superior Court, Hampden County; H. T. Lummus, Judge.

Bill by the Mount Holyoke Realty Corporation against the Holyoke Realty Corporation and others. From the final decree, both parties appeal.

Affirmed.

B. F. Evarts, of Holyoke, for plaintiff.

R. L. Davenport and P. Jed, both of Holyoke, for defendants.

DONAHUE, Justice.

The plaintiff and the defendant, Holyoke Realty Corporation, which will hereinafter be referred to as the defendant, own adjacent business blocks on High street in Holyoke. Title to their respective properties was acquired by the plaintiff in 1929, and by the defendant in 1931. The first floor of each building is occupied for store purposes and the second and third floors of the defendant's building are let to separate tenants who are joined as parties defendant. Since 1919, tenants occupying the third floor of the building now owned by the defenant have had access thereto only by means of a stairway located in the building now owned by the plaintiff and through doorways cut on the third floor in the partition wall between the two buildings. In 1926 a doorway was cut in the partition wall on the second floor and since that time tenants of the second floor of the building now owned by the defendant have had access to the premises leased to them only by the use of the stairway in the building now owned by the plaintiff.

The plaintiff seeks by its bill in equity to have the defendant and its tenants enjoined from using the stairway in the plaintiff's building. The case was heard upon an agreed statement of facts and upon oral evidence by a judge of the superior court who made findings of fact and rulings of law and entered a final decree declaring that upon the severance of title by a former owner of both properties ‘there was created by implication, as appurtenant to the land of the defendant * * * an easement of way upon and over the stairway on the southerly side of the property of the plaintiff and the entrance therefrom through the partition wall to the third floor but not to the second floor of the property of the defendant * * * to pass and repass from and to High Street, which easement is appurtenant to the said premises of the defenant’ and further declared that ‘this easement will continue only during the joint life of the two blocks now standing upon the two parcels. * * *’ Both parties appealed from the final decree.

The common owner of the two buildings in the year 1919 removed a stairway leading from the second floor to the third floor of the southerly building, which is now owned by the defendant, and constructed doorways on the third floor in the partition wall between the two buildings. Thereafterwards and down to the present time the only means of access available for use and used by occupants of the third floor of the southerly building was through these doorways and over a stairway in the northerly building now owned by the plaintiff leading from the third to the street floor where there was an entrance from the street. Such was the only method of passage between the street and third floor of the southerly building when one Hertzmark purchased the two parcels in 1920, and when on April 27, 1922, he gave separate first mortgages on each parcel to the People's Savings Bank, on the northerly parcel for $48,000, on the southerly for $52,000. Hertzmark deeded the northerly parcel to one Bourque in 1925, subject to the $48,000 mortgage and took back a second mortgage which he foreclosed in 1928 and again took title. Later in the same year the mortgage to the People's Savings Bank on that parcel was discharged, a new mortgage to another bank given, and in 1929 that parcel was deeded by Hertzmark to the plaintiff. Title to the equity of redemption in the southerly parcel remained in Hertzmark subject to the $52,000 mortgage until the People's Savings Bank foreclosed that mortgage in 1931 and gave a foreclosure deed to the defendant. The record warrants the finding that, while it is possible to furnish a means of access to the third floor of the defendant's building by the construction therein of a stairway, the necessary cost and the resultant diminution in the value would be unreasonable and disproportionate to the value of that building.

The defendant derives title to the premises now owned by it through the foreclosure of the mortgage deed given by Hertzmark to the People's Savings Bank on April 27, 1922. It necessarily bases its contention of a right to an easement of passage through the plaintiff's building on the grant contained in that mortgage deed. The deed granted the premsies by descriptive metes and bounds but made no mention of a right of passage through the building now owned by the plaintiff. In words it expresses no easement nor did the mortgage deed of the other parcel which was delivered at the same time recite that the premises by it granted were subject to an easement. Such circumstances may exist at the time there is a grant of land that the instrument of grant describing the premises but making no reference at all to an easement nevertheless created one. When the owner of two adjacent parcels of land retains ownership of one and conveys the other by an instrument which is silent as to a right of easement over one of the parcels for the benefit of the other, and such an easement is later asserted in court based upon an open and continuous use by the owner of one parcel for the benefit of the other at and preceding the time of the grant if there is evidence tending to show an intent of the parties at the time of the conveyance that such an easement be then created the question of the construction of the instrument is presented. Salisbury v. Andrews, 19 Pick. 250, 253;Thayer v. Payne, 2 Cush. 327, 330;Orpin v. Morrison, 230 Mass. 529, 532, 120 N. E. 183. The existence of such intention must be determined from the terms of the instrument and from the circumstances existing and known to the parties at the time the instrument of conveyance was delivered. Lipsky v. Heller, 199 Mass. 310, 317, 85 N. E. 453;Prentiss v. Gloucester, 236 Mass. 36, 52, 127 N. E. 796;Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350, 354, 150 N. E. 203;Churchill v. Harris, 257 Mass. 499, 502, 154 N. E. 87. There are cases where a single circumstance may be so compelling as to require the finding of an intent to create an easement. For example, if, after a conveyance of some of his land, an owner is left with a parcel entirely surrounded by the land conveyed, the sole fact that he has no access to the land retained without crossing the land conveyed may be sufficient basis for the implication of an easement although the deed of conveyance contains a warranty against encumbrances. Brigham v. Smith, 4 Gray, 297, 64 Am. Dec. 76. The defendant here does not base his claim of an easement upon the ground that there is no possible means of access to the third floor of its building except through the plaintiff's building. It contends that the mortgage deed made a severance of the title, that prior thereto the common owner of both parcels had made an apparent and continuous use of one as if there had been a servitude imposed upon it for the benefit of the other, that such a servitude was reasonably necessary for the benefit of the defendant's parcel, that under circumstances existing when the mortgage deed was given, it should be found that the parties intended to create an easement and that by implication it should be held that an easement now exists.

When the two buildings were both owned in fee by Hertzmark and since 1919 while both were owned by his immediate predecessor in title, there was an open, obvious and continuous use of the doorways on the third floors in the partition wall between the two buildings, and of the stairway in the building now owned by the plaintiff leading from the third to the street floor by occupants of the third floor of the building now owned by the defendant. From 1919 until 1922 when the mortgage deed under which the defendant derives title was delivered there was a dedication by the common owners of the two parcels of an area for passage through one building for the use and benefit of the occupants of the third floor of the other building. So long as the two buildings had a common owner no actual legal right...