New England Structural Co. v. Everett Distilling Co.

• Decision Date: 11 September 1905
• Citation: 75 N.E. 85,189 Mass. 145
• Parties: NEW ENGLAND STRUCTURAL CO. v. EVERETT DISTILLING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 145

75 N.E. 85

NEW ENGLAND STRUCTURAL CO. v. EVERETT DISTILLING CO.

Supreme Judicial Court of Massachusetts, Middlesex.

September 11, 1905

COUNSEL

Arthur A. Folsom and A. K. Cohen, for

Louis D. Brandeis and Wm. H. Dunbar, for respondent.

OPINION

HAMMOND J.

The court 'ruled and found as matter of law' that upon the facts stated in the report the respondent had no right of way over any portion of the petitioner's land, formerly called Front street. We understand this to be a ruling on the question as one of law, and not a finding of fact. At the argument before us the respondent waived any claim to any easement in Front street west of the westerly line of its premises, but contended that it has a right of way over that part of Front street which extends from said westerly line easterly to Locust street. The only question, therefore, is whether as to this part of the strip of land called Front street (which for the sake of brevity will be called the 'easterly part') the ruling was correct. The report contains a detailed statement of the conveyances affecting the lands in question, made during the last three-quarters of a century, and at first sight the facts seem quite complicated, but the case of the respondent has been so clearly and logically set forth in its brief that the task of decision has been greatly lightened.

In 1857 the Atlantic Wharf Company conveyed to one Upham lot 4 on the plan known in this case as 'Exhibit E.' The deed described the land by reference to this plan as 'lot 4 between Second and Front streets and bounded on said streets.' Upon the plan Front street is shown as extending from Locust street westerly to a point some distance west of the present westerly line of the respondent's land. Lot 4, of which the respondent's land is a part, is upon the north side of Front street. Since the lot was bounded on this street, there was created in favor of it a right of way over the street as shown on the plan, not only as to that part against which the lot abutted but also over the rest of the street, so far as the grantor had power to create such a right; and that is so, even if the grantor had not the power to create the right over the whole of the street. The deed is operative by estoppel to create the easement, so far as the grantor's title will support it. Such a way is not a way by necessity, and the right exists, even if there be other ways, either public or private, leading to the land. Van O'Linda v. Lothrop, 21 Pick. 292, 32 Am. Dec. 261; Rodgers v. Parker, 9 Gray, 445; Stetson v. Dow, 16 Gray, 372; Crowell v. Beverly, 134 Mass. 98; Howe v. Alger, 4 Allen, 206, and cases therein cited.

It becomes necessary, therefore, to look into the nature and extent of the interest which at the time of this deed the grantor, the Atlantic Wharf Company, had in Front street. It acquired by the deed from Sears, Coe & Upham the fee in the south half of the street from Locust street to the east line of the respondent's land, and in the whole width of the street, so far as it abutted upon this land. To this extent, therefore, the deed gave, as against the grantor and its assigns, a right of way appurtenant to the respondent's land over Front street to Locust street. As to the northerly half of the street, extending from the easterly line of the respondent's land to Locust street, the respondent contends that it has a right of way by reason of other conveyances mentioned in the report; but the facts bearing upon this contention are somewhat meagerly set forth in the report, and as the case must go back to the trial court, and this question may become immaterial at the second hearing, by reason of the finding of the court upon the question of abandonment or otherwise, it is not necessary now to pass upon it. The court which finally passes upon it should have a copy of the detailed description in the releases which were given by Mrs. Norris of the boarding house lots and the lot immediately adjoining it upon the west, so that it may be seen whether or not the releases extend to the center of Front street, and should have also a more detailed statement of the transaction concerning the indenture between Sears and the owners of the Rayner lots. Whatever may be the case as to this part of Front street, it is clear, as stated above, that in any event the Atlantic Wharf Company had power to grant the easement in the southerly half and part of the northerly half of Front street, and its deed to Upham had that effect. Front street, as shown upon the plan, is 40 feet wide. The right of way, therefore, extended over a strip of land at least 20 feet wide leading to Locust street.

The mesne conveyances by which Upham's title in the premises of the respondent was acquired by the latter were all apt and sufficient to carry any easement that Upham had acquired in Front street. In 1871 his heirs conveyed the whole of lot 4 to Munroe, who conveyed it in 1872 to the Union Stone Company. In 1885 this latter company carved out of lot 4, and conveyed to Charles W. Howland, the land now owned by the respondent....