Robert v. O'Connell
| Citation | 269 Mass. 532 |
| Parties | NAPOLEON F. ROBERT v. ABIGAIL P. O'CONNELL. |
| Decision Date | 02 January 1930 |
| Court | United States State Supreme Judicial Court of Massachusetts |
September 19, 1929.
Present: RUGG, C.
Estoppel. Prescription.
Easement.
In a suit in equity to enjoin the defendant from encroaching on a certain alley the following facts appeared: a water power corporation in 1885 conveyed land by a deed which bounded it on the center line of the alley and specifically provided that the portion of the alley thus conveyed should "be forever 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 reserved to itself, its successor and assigns and to the city where the land was "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." The grantee and his successors and assigns openly, adversely and continuously for more than thirty years before 1928 maintained structures upon the portion of the alley above described which were an encroachment upon the easement granted by the deed. The land in 1903 was conveyed by a deed of the devisee of such grantee containing no reference to an alleyway restriction or reservation, and, in 1908, it was conveyed to the defendant by a deed which bounded it on In 1924 the corporation conveyed to the plaintiff land on the other side of the alleyway containing provisions as to the alley like those in the deed to the defendant's predecessor. The bill was dismissed. Held, that
(1) At the time the plaintiff took title, his grantor, the corporation, by reason of the prescriptive right gained by the defendant and his predecessors in title, no longer had any right to enforce the agreements and reservations in its deed to the defendant's predecessor; and therefore the plaintiff and the defendant did not stand in the relation of parties or privies to the deed from the corporation to the defendant's predecessor and the deed to the defendant;
(2) The recitals in the deed to the defendant, "Said premises are conveyed subject to the usual alleyway restrictions," did not estop the defendant from showing that those usual alleyway restrictions previously had been destroyed by prescription and from including in the period necessary to establish that prescription a time of adverse use by himself in addition to the time of adverse use by his predecessors in title and occupation;
(3) The bill rightly was dismissed.
One, who holds premises in part conveyed by deed and in part occupied openly, continuously and adversely to the record owner, for a period of over twenty years by himself and his predecessors in title, is not prevented from establishing his title to the whole by the fact that his deed does not describe and, in strictness, convey that whole. Per
BILL IN EQUITY, filed in the Superior Court on October 9, 1926, seeking to enjoin the defendant from encroaching upon and obstructing a certain alleyway.
In the Superior Court, the suit was referred to a master. Material facts found by the master are stated in the opinion.
By order of Greenhalge, J., there were entered an interlocutory decree confirming the master's report and a final decree dismissing the bill. The plaintiff appealed.
The case was submitted on briefs. N.P. Avery, A.S. Gaylord & R.L. Davenport, for the plaintiff.
J.F. Kelly, for the defendant.
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 Street, Summer Street, Ely Street and North Bridge Street 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 forever 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 center 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...
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