Murphy v. Mart Realty of Brockton, Inc.

• Decision Date: 08 March 1965
• Citation: 205 N.E.2d 222,348 Mass. 675
• Parties: Rose T. MURPHY v. MART REALTY OF BROCKTON, INC. Rose T. MURPHY v. Frances M. PACIFICO, trustee.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 222

205 N.E.2d 222

348 Mass. 675

Rose T. MURPHY v. MART REALTY OF BROCKTON, INC.

Rose T. MURPHY v. Frances M. PACIFICO, trustee.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Nov. 5, 1964.

Decided March 8, 1965.

James D. St. Clair, Boston, for defendants.

Harry J. O'Sullivan, Brockton, for plaintiff.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and SPIEGEL, JJ.

SPALDING, Justice.

These are two bills in equity. One is against Mart Realty of Brockton, Inc. (Mart), and the other is against Frances M. Pacifico (trustee), as trustee of Mart Realty Trust. The bills seek to enjoin the defendants from trespassing upon a 50 foot strip of land (strip) which borders the plaintiff's and trustee's property. The bills also seek a mandatory injunction for the removal of blacktop and fill on the strip. The judge made findings of material facts. The evidence is reported.

The pertinent facts are these. The strip is a proposed street which appeared on a plan recorded by the plaintiff's husband in 1951. The plan shows a proposed street fifty feet wide and 205 feet long running north from Crescent Street. The plaintiff's property, lots 4 and 5, borders the entire length of the strip on its westerly side. The defendant trustee's land, lots 1, 2 and 3, borders the entire length of the strip on its easterly boundary. Lots 1 and 5 abut Crescent Street. Originally, the trustee's property was owned by the plaintiff and her husband. The trustee acquired title by means of the following conveyances: In 1952 the plaintiff and her husband conveyed lot 1 to Robert O. Chick and his wife (Chicks). Thereafter, the Chicks conveyed the land to Fernandes Realty Corporation (Fernandes). Both deeds described the property as being bounded westerly by the proposed street as shown on the plan. In 1958, the plaintiff (now the sole owner of the property, her husband having died) conveyed lots 2 and 3 to Fernandes. In that deed, these lots were described as bounded 'Westerly by a proposed Street shown on said plan * * *.' ¹ Fernandes also owned land north of lot 3. By a deed dated October 1, 1959, Fernandes conveyed various parcels of land including lots 1, 2 and 3 to the Brockton-East Shopping Plaza, Inc. (Brockton-East). The westerly boundary of lots 1, 2 and 3 was described in the same manner as in the earlier deeds, that is, as bounded on the proposed street shown on the plan. On March 17, 1960, Brockton-East "East reconveyed the land to Fernandes, and on the same day Fernandes conveyed it back again to Brockton-East. This was done to remove a restriction on the record. Finally, on December 28, 1961, Brockton-East conveyed the property to the trustee. At the present time the land and buildings owned by the trustee are occupied by Mart under a lease, and are used for a discount store known as 'Mammoth Mart.'

The strip was stony and rocky. On it were trees and tree stumps, shrubs and rose briars; it was not passable by vehicle or by foot, and was not staked out. The strip remained undeveloped until sometime after the plaintiff sold the lots. Subsequent to these sales, the trustee caused the strip to be filled, graded and blacktopped. In the course of construction, a 'curb cut' was applied for and granted by the city of Brockton. The city removed the edgestone and sidewalk from the part of Crescent Street which bordered the strip. The strip is now being used for vehicular and pedestrian passage to and from the Mammoth Mart.

The judge concluded that the defendants had no easement of way over the strip and no ownership in the soil of any portion of it. He ordered decrees to be entered enjoining them from using the strip; the decrees further ordered them to restore the strip to its former condition. From decrees in accordance with this order the defendants appealed.

The trustee contends that she and her lessee, Mart, have an easement of way over the strip. The trustee also asserts that the fee to the easterly half of the strip is not in the plaintiff and has not been owned by her since the conveyances to the Chicks and Fernandes.

1. The defendants invoke the familiar rule that 'when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.' Casella v. Sneierson, 325 Mass. 85, 89, 89 N.E.2d 8, 10, and cases cited. This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated. Tufts v. City of Charlestown, 2 Gray, 271, 273; Ralph v. Clifford, 224 Mass. 58, 60, 112 N.E. 482; Casella v. Sneierson, 325 Mass. 85, 90, 89 N.E.2d 8; Olson v. Arruda, 328 Mass. 363, 104 N.E.2d 145. This principle of estoppel 'seems to have become a rule of law rather than a mere canon of construction.' Teal v. Jagielo, 327 Mass. 156, 158, 97 N.E.2d 421, 422.

In determining whether the strip has been sufficiently defined as a proposed street, reference may be made to the plan filed by the plaintiff's husband. 'A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.' Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350, 354, 150 N.E. 203, 205; Goldstein v. Beal, 317 Mass. 750, 755, 59 N.E.2d 712. Here the proposed street was adequately designated in the plan. We are of opinion, therefore, that the deeds to the Chicks and Fernandes created an easement of way in the strip which bounded the land granted (lots 1, 2 and 3). The grantor is estopped as against the Chicks and Fernandes and their grantees from denying the existence of such easement over the grantor's land within the limits of the way. Once the easement was created it passed to succeeding grantees by virtue of G.L. c. 183, § 15, ² whether or not it was mentioned in the deeds.

The judge thus erred in ruling that the defendants had no easement of way over the proposed street indicated on the plan. But what a right of way, as here, is created by estoppel, it must be appurtenant to the land conveyed. In other words, it is not an easement in gross. A right of way appurtenant to the land conveyed cannot be used by the owner of the dominant to pass to or from other land adjacent to or beyond that to which the easement is appurtenant. Stearns v. Mullen, 4 Gray, 151; Smith v. Porter, 10 Gray, 66; Randall v. Grant, 210 Mass. 302, 96 N.E. 672; Ball v. Allen, 216 Mass. 469, 474, 103 N.E. 928; Cooley v. Boston & Maine R.R., 303 Mass. 371, 374-375, 21 N.E.2d 953, 122 A.L.R. 1166.

The evidence reveals that lots 1, 2 and 3 are but a small portion of the land comprising the area on which Mart's discount store and parking area are located. Actually neither the store itself nor the parking area used in conjunction with it is within the boundaries of lots 1, 2 and 3. Thus, in using the way to pass to and from the store, the defendants have overloaded the easement. And this would be none the less true even if those using the way came onto it by passing through lots 1, 2 and 3. In Davenport v. Lamson, 21 Pick. 72, it was held that a defendant, who had a right of way appurtenant to a three acre lot, could not use it as a right of way to and from an adjoining nine acre lot, despite the fact that in using the way he passed through the three acre lot.

Because of the judge's ruling in the present cases that the defendants had no easement of way over the strip, he never reached the issue of whether...