Regan v. Boston Gas Light Co.

• Decision Date: 04 March 1884
• Citation: 137 Mass. 37
• Parties: John B. Regan v. Boston Gas Light Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 37

John B. Regan v. Boston Gas Light Company

Supreme Court of Massachusetts

March 4, 1884

[Syllabus Material]

Suffolk. Bill in equity, filed April 24, 1883, by the owner of the lots marked 1, 2, 3, 4, and 5, on a plan, a sketch of which is shown in the margin, ^[*] which lots are situated at Commercial Point, so called, in that part of Boston formerly Dorchester, to restrain the defendant from obstructing certain of the streets shown on said plan, over which the plaintiff claimed a right of way as appurtenant to his five lots. The defendant admitted the intended obstruction of Commercial Street and Union Street, to the eastward of Pleasant Street; of Washington Street, Plymouth Street, and South Street, to the eastward of Neponset Street; and of Pleasant Street, to the southward from Union Street; and contended that the plaintiff had no rights of way in this territory. The line of the intended obstruction began at the channel shown at the bottom of the plan, where the easterly line of Neponset Street touches it, and ran thence along the easterly line of Neponset Street to the southeast corner of said street and Union Street, thence along the southerly line of Union Street to the southeasterly corner of Union Street and thence on the easterly line of Pleasant Street across Union Street and Commercial Street.

The case was heard before Holmes, J., who found that Barque Warwick Street had been a public highway since 1821; that the streets over which the plaintiff claimed a right of way were not public highways; that Commercial Point was a peninsula bounded by the Neponset River on the east, by a bay of the sea on the north, and by Mill Creek on the south; that, in 1808, a free bridge was erected at the southerly end of Barque Warwick Street, which was replaced in 1833 by another free bridge, which still remains; that, until 1847, no streets east of Neponset Street were worked, except as follows: The street called Union Street was a defined way over the grass from Neponset Street to a point about half-way between Neponset Street and Pleasant Street. Commercial Street was defined about the same distance; beyond that it was undefined by any visible mark, but ran along the beach and thence around a bluff. On the beach, it was covered in some places by the tide at high water, and by stones, and was impassable by wagons. In 1844, one Balkam built a house on Washington Street, between Neponset Street and Pleasant Street, and there was a cart-path from Neponset Street to his house, but no farther. There was a well-defined way from Neponset Street to a private wharf at the easterly end of South Street. The rest of the peninsula was a grassy field, without houses or defined streets; and at the northeast end there was a high bluff with steep descent, some thirty or forty feet above low-water mark, gradually sloping down to the wharf on South Street.

The judge found for the defendant, and ordered the bill to be dismissed, with costs; and, at the request of the parties, reported the case for the consideration of the full court. Annexed to the report was an abstract of the deeds in the chain of title to the respective parties, beginning with a deed in 1804, from Edward Preston to Joseph Newell and Ebenezer Niles, of a tract of land consisting of twenty acres, fifteen rods, with beach and flats, then called Preston's Point, comprising all the point known as Commercial Point east of Barque Warwick Street. There were also annexed several plans, of which two only need be mentioned: The first, a plan made by Thomas Moseley, dated September 30, 1835, of which the plan printed ante, p. 38, is a sketch. This sketch shows the relative situation of the streets, but not all of the subdivisions of the lots shown on the plan; nor does the sketch show the whole of lot 5, which is represented on the plan as a large lot, and bounded on the northwest and west by Mill Street, a public highway. The second, a plan recorded in the registry of deeds on July 18, 1810, and which purported to be taken from the original by Mather Withington on July 12, 1810. The earliest reference, in the deeds relating to the property, to a plan of Withington, is in a deed from Newell and Niles dated December 1, 1806. The plaintiff's lot 5 does not appear at all on the Withington plan. The same streets appear on both the plans, except that South Street bears no name on the Withington plan. Commercial Street is also represented on this plan as terminating at its easterly end at this unnamed street, instead of at Plymouth Street, as on the Moseley plan. The language of the deeds under which the parties respectively claimed sufficiently appears in the opinion.

Bill dismissed.

E. Avery & E. M. Johnson, for the plaintiff.

C. P. Greenough, for the defendant.

Morton C. J. Devens & C. Allen JJ., absent.

OPINION

Morton

The plaintiff contends that he has a right of way over the streets shown on the plan, as appurtenant to the lots of land owned by him.

His title to the first four lots is derived from John Preston, who, by his deed dated December 2, 1874, mortgaged certain premises, which include the first three lots, to Clement Willis, describing the land as "commencing at northwesterly corner of lot 17 on plan of Moseley," and bounded by land of Berry and Wheeler, and by Commercial Street and Union Street. Willis, having foreclosed his mortgage, conveyed the first three lots to the plaintiff by deed dated December 21, 1881, containing substantially the same reference to the plan. The fourth lot comes to the plaintiff by mesne conveyances from the assignees in bankruptcy of John Preston. We are not furnished with full copies of these deeds, but we understand that they contain only the same general reference to the plan.

These deeds undoubtedly give the plaintiff a right of way over the streets named in them, Commercial Street and Union Street, so far as to furnish him with a communication with the public streets with which they connect. This right is not questioned. But they refer to the plan merely for the purpose of description and identification of the lots conveyed, and do not, either expressly or by implication, annex to those lots a right of way over all the streets laid down on the plan. Indeed, Preston could not convey such a right over most of the streets. In 1872, Preston, being the owner of the...