Robert v. O'Connell
| Decision Date | 03 January 1930 |
| Citation | 269 Mass. 532,169 N.E. 487 |
| Parties | ROBERT v. O'CONNELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Hampden County; F. B. Greenhalge, Judge.
Bill in equity by Napoleon F. Robert against Abigail P. O'Connell. From an adverse decree, plaintiff appeals. Affirmed. See, also, Robert v. Perron, 169 N. E. 489.
Avery, Gaylord & Davenport, of Holyoke, for appellant.
Joseph F. Kelly, of Holyoke, for appellee.
The plaintiff appeals from a decree confirming a master's report, and from a final decree dismissing his bill with costs. The report of the special master shows facts as follows: At some time before July 1, 1885, the Holyoke Water Power Company had been the owner of all the land lying in the block between Lyman, Summer, Ely and North Bridge streets in Holyoke except a portion known as the Bowers and Mosher tract which fronted upon Ely Street. On July 1, 1885, it conveyed to Michael Collins a lot fronting easterly on Summer Street and bounding westerly, according to the deed, upon ‘the center line of an alley or common passageway’ ‘sixteen (16) feet wide, leading out of and from Lyman Street.’ The deed set out ‘Eight (8) feet in width of said Alley lies upon and is a part of the whole westerly end of the lot herein conveyed and is to be for ever kept open as a passageway in common free from all obstructions and nuisance made or permitted by the grantee his heirs or assigns, and the grantor reserves to itself, its successors and assigns and to the City of Holyoke the right at all times to enter upon said Alley to lay water and gas pipes, construct Sewers and repair the same and to do whatsoever is necessary to be done for the public interest and convenience.’ A passageway sixteen feet wide extended from Lyman Street to Ely Street and had been in common use for many years. The city of Holyoke had, in 1881, laid a sewer throughout its length and substantially along its centre line. That way lay, in part, upon the rear eight feet of the lot conveyed to Collins, but, chiefly, lay to the west of the premises described in the deed to him, unless it was itself the way referred to in that deed. The master has found that it was not the sixteen foot strip had in mind and intended to be used as a boundary by the grantor. The strip so intended was a continuation of the northerly part of the commonly used way previously described in a straight line to the southeast. It came to a dead end at the northerly line of the Bowers and Mosher tract, and did not extend through to Ely Street. It might, however, be correctly described as ‘leading out of and from Lyman Street.’ It appeared that the Holyoke Water Power Company had designed and laid out a way sixteen feet wide extending from Lyman Street south through its land in a straight line to the Bowers and Mosher tract ending there and forming a culde-sac; but that those who used the passage, deviated from the straight line at a point some seventy-five or eighty feet north of the Bowers and Mosher tract, and somewhat northerly of the northern line of the lot conveyed to Collins, and then traveled southwesterly to Ely Street in a sixteen foot strip across land of the power company to a sixteen foot passageway from Ely Street laid out over the Bowers and Mosher tract westerly of the point where the power company way would have intersected Ely Street had it been extended thither in a straight line. Collins and his successors in title maintained a fence, a shed, or a garage on the easterly line of the passageway as actually used for more than thirty years before 1928, and have occupied to that easterly line; and, thus, have encroached upon the eight feet which by the language of the deed to Collins was to be kept open as a way. The master found that the public has a prescriptive right of way over the sixteen foot passage upon land formerly of the power company as actually used, Commonwealth v. Coupe, 128 Mass. 63, and that Collins and his successors have to the extent indicated used the land subjected to the easement referred to in the deed to Collins openly, adversely and continuously in disregard of that easement.
Collins died in 1889 leaving his property by will to his wife, Johanna. She died, and her executor who was also devisee, in 1903 conveyed to Michael Shea by a deed which described the premises as in the deed to Collins but omitted any reference to alleyway restrictions or reservations. In 1908 Shea conveyed to the defendant, bounding easterly on ‘the center line of an alley or common passageway (which passageway is sixteen (16) feet wide, leading out of and from Lyman Street) and reciting, ‘Said premises are conveyed subject to the...
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