Nash v. Eliot St. Garage Co.

• Decision Date: 23 June 1920
• Citation: 128 N.E. 10,236 Mass. 176
• Parties: NASH et al. v. ELIOT STREET GARAGE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 176

128 N.E. 10

NASH et al.

v.ELIOT STREET GARAGE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1920.

Appeal from Land Court, Suffolk County; C. T. Davis, Judge.

Petition to amend certificate of title by Francis P. Nash and another, trustees, against the Eliot Street Garage Company. From a decision allowing the amendment, defendant appeals. Affirmed.

Roland Gray, Albert Boyden, and William M. Quade, all of Boston, for appellant.

Hale & Dorr, of Boston (Grafton L. Wilson, of Boston, of counsel), for appellees.

Rackemann & Brewster, of Boston (Chas. S. Rackemann and Joseph Sargent, both of Boston, of counsel), for Tavern Club, amicus curiae.

CROSBY, J.

This is a petition to the land court under R. L. c. 128, § 107, to amend the certificate of title of the petitioners by striking therefrom those parts that subject their land to a right of way over Boylston Place, so called, in Boston, and which way is alleged by the respondent to be appurtenant to its land.

The instrument creating the right of way is in the form of an indenture, dated September 30, 1853, between Dixwell and others and Brackett. Boylston Place is a private way running southerly from Boylston street, between, and in the same general direction as, Tremont and Carver streets. The respondent, who is the successor in title to Brackett, is now the owner of the land at its lower or southerly end; upon this land 10 brick dwelling houses stood, which abutted on the way, 5 on each side. The petitioners, who are successors in title to Dixwell and others, own a parcel of land which abuts on Boylston Place at its entrance from Boylston street and includes part of the fee in the way.

By the indenture Dixwell and others, the grantors, remised, released and forever quitclaimed to Brackett--

‘and his heirs and assigns, but as appurtenant, however, to that portion of his estate on Eliot street in Boston which lies north of a line which is 40 feet distant northerly from and parallel to the north line of said street, a free right of way and passage in common with them and their heirs and assigns over Boylston Place, so called, to and from that portion of his said estate which is above specified to Boylston street and carriage way, and the sidewalks in said placed to be used as such and in no other manner and as the same now exist and to be continued to uniform width by said Brackett. But this conveyance is made upon the following conditions.’

Then follow three conditions. The first provides in part that Boylston Place is to be extended to a line 40 feet distant from Eliot street at the sole cost of Backett, but is never to be continued through to Eliot street; that Brackett will build a brick building opposite the end of the way, fronting on Eliot street and not more than 40 feet in depth, without any opening onto or passageways leading therefrom into Boylston Place; ‘the object being to prevent as far as possible a street or common passageway from being ever made over Boylston Place to connect Boylston street with Eliot street, or any other street or place.’ The second condition provides that Brackett shall lay a drain through Boylston Place and across his land to Eliot street for the use of the estates of the other abutters on the place. The third condition is as follows:

‘That said Brackett or his representatives shall also erect not more than ten brick dwelling houses fronting on said place as continued, five on each side as of good style and of such class as shall accommodate occupants like those now occupying said place; that no materials, for building the same, shall be carried over the place as it now exists; and that until such houses are erected on one side of the place as continued, and fit for occupancy, the brick wall at the foot of the present place is not to be removed; and as all the houses may not be immediately erected the said Brackett or his representatives shall before every vacant lot erect and maintain a substantial fence, so as effectually to exclude all passage to or from the same over Boylston Place, so that none but the occupants of the new buildings, so to be erected on said place shall ever be able to avail themselves of any of the privileges hereby conveyed.’

The ten brick dwelling houses were erected by Brackett shortly after 1853, and recently were torn down voluntarily by the respondent.

The question is: What is the meaning of the language used in the indenture creating the right of way? Was it a right of way for the benefit solely of the occupants of the dwelling houses to be erected, and which came to an end when the houses were demolished? Or was it in effect an absolute grant of a way appurtenantto the land on which the houses stood? The determination of the question depends on the intention of the parties as found in the words used to express their meaning as applied to the subject-matter. Codman v. Evans, 1 Allen, 443;Simonds v. Simonds, 199 Mass. 552, 85 N. E. 860,19 L. R. A. (N. S.) 686;Cotting v. Boston, ...