Randall v. Chase

• Decision Date: 03 July 1882
• Citation: 133 Mass. 210
• Parties: Paul N. Randall v. William H. Chase
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 210

Paul N. Randall v. William H. Chase

Supreme Court of Massachusetts

July 3, 1882

Middlesex. Tort for obstructing the plaintiff's right of way over the defendant's land in Hudson. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

Exceptions overruled.

R. Lund & H. F. Hurlburt, for the defendant.

G. A King & J. T. Joslin, for the plaintiff.

OPINION

Devens J.

1. The plaintiff claimed a right of way over the defendant's premises, which way he alleged to have been obstructed. This right was asserted to exist both by express grant and by prescription. The way was claimed to be located immediately south of the defendant's building, and to be twelve feet in width. The plaintiff's title came by mesne conveyances from Reuben Hapgood, who, on March 6, 1836, conveyed the premises to Francis Brigham. While Brigham owned the premises, on May 1, 1837, Albert Randall, who then owned the defendant's premises, conveyed to him, his heirs and assigns, what the deed describes as "a privilege at all times of passing and repassing with carriages or otherwise as the said Francis may elect, without any hindrance or obstruction, in the driveway by the westerly end and southerly side of the block of buildings in which said tenement is situated, to land of said Francis, said driveway to be kept not less than twelve feet wide." This was not, as the defendant contends, a mere personal privilege, but an easement which Brigham could convey; nor was it a grant of a way such as Brigham might elect, but of a way defined by the westerly end and southerly side of the block, and by its width. The election given to Brigham related merely to his mode of using the way, whether "with carriages or otherwise."

Brigham conveyed to Houghton, the plaintiff's intermediate grantor, on November 27, 1845, describing the tract of land by metes and bounds, and the privilege as in "the driveway by the westerly end and southerly side of said tract of land, said driveway to be kept not less than twelve feet wide." When the location of the way was disputed, at the trial, it was proper for a more minute description to refer to the deed under which Brigham obtained a privilege in a way which was alike described as on the southerly side of the block and of the tract on which the block stood. The deed of Randall to Brigham of May 1, 1837, was therefore admissible in evidence.

2. The title of the defendant was derived from Albert Randall, who, after the conveyance of the right of way to Francis Brigham, heretofore stated, conveyed, on December 1, 1837, a tract of land including the premises of the defendant to Luke Gates, reserving the privilege of the use of a driveway on the east side of said lot, "for the use of the owners or those that may own the tenements in the block adjoining." This tract was conveyed to Francis Conant on July 1, 1838, and by Conant conveyed to Francis Brigham on March 22, 1849, who on January 30, 1860, conveyed the tract in two parcels to Clark and Maynard respectively, the parcel conveyed to Clark being that now owned by the defendant. Each of these parcels is bounded to and by the centre of the driveway, alleged to be obstructed, and is conveyed subject to the right of other owners of the block to pass and repass thereon.

On March 30, 1839, Stephen Pope and others conveyed to each other and to Albert Randall a right of way in a passage or driveway on the southerly side of the block, commencing at the westerly end thereof and terminating at its easterly end "said passage or driveway to be not less than twelve feet wide and adjoining said block of buildings." The object of this deed was manifestly to give to all the tenants in the block a right of way similar to that obtained by Brigham from Randall. The plaintiff was permitted to give this deed in evidence, as tending to establish by its recitals the location of the driveway, which was the matter disputed at the trial. At the time it was made, it will be observed by the dates heretofore given, Randall, although a grantee, had ceased to be an owner of the tract which included the defendant's premises, and Conant, who then held this tract, was not a party to it. As no one having any interest in the defendant's estate joined in it, the defendant, at the trial, objected to its admission in evidence, on the ground that it could not affect the defendant's estate either to create or locate a passageway. But Francis Brigham, to whom Conant afterwards conveyed and under whom the defendant now claims, then owned the plaintiff's estate, and was a party to it both as grantor and...