Robert v. Perron
Citation | 269 Mass. 537,169 N.E. 489 |
Parties | ROBERT v. PERRON. |
Decision Date | 03 January 1930 |
Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Hampden County; F. B. Greenhalge, Judge.
Action by Napoleon F. Robert against Mary Perron. From an adverse decree, plaintiff appeals. Affirmed.
Avery, Gaylord & Davenport, of Holyoke, for appellant.
J. F. Kelly, of Holyoke, for appellee.
The bill in this cause was brought at the same time as that in Robert v. O'Connell, 264 Mass. --, 169 N. E. 487, decided this day. The cases were heard together by the special master and by the Superior Court. The facts found by the master with reference to the origin and use of the common passageway in general use between Lyman and Ely streets in Holyoke and to prescriptive rights therein are the same, and need not be again set out. The land of the defendant adjoins that of Mrs. O'Connell to the south; but the passageway in actual use lies relatively further to the west thereon, and the encroachment upon the plaintiff resulting from occupation by the defendant up to the easterly line of that passageway is greater.
The Holyoke Water Power Company, which once owned all the land in the block bounded by Lyman, Summer, Ely and North Bridge streets except a tract fronting upon Ely street, conveyed a parcel facing Summer street to one Long in May of 1886, and another parcel to the plaintiff in 1924. It bounded both parcels (the former on the west and the latter on the east) by ‘the center line of an alley or common passageway, which passageway is sixteen (16) feet in width leading out of and from said Lyman Street.’ The deed to Long contained a clause: ‘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 passage way in common free from all obstructions and nuisance made or permitted by the grantee his heirs or assigns, and the grantor reserves to itself and 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.’ The deed to the plaintiff contained the same clause, with the exceptions that the words ‘and to the City of Holyoke’ were omitted and in their place was printed ‘the right of passage therein on foot and with vehicles, and also’; and that the words ‘down and use’ were inserted between ‘lay’ and ‘water’; and the words ‘and use’ were inserted between ‘construct’ and ‘sewers.’ The defendant is a daughter of Long who has lived upon the locus from the time he took possession. She inherited one undivided third at his death in 1887. She acquired a second from a purchaser from the assignees in the insolvency of a brother in 1895, and the third from the remaining heir at law of her father in 1923. None of the conveyances to her contain any reference to the alleyway, either as a monument or boundary. All omit the clause of restriction and reservation, and make no reference to it. Within two months after getting his deed and taking possession, Long, in July, 1886, built a fence along the easterly line of the passageway in actual use, and thus enclosed a triangular area west of the center line of the passageway as set out in his deed. In one way or another the premises so enclosed have since been held openly, continuously, without interruption from the Holyoke Water Power Company and, as the judge found, adversely, by Long and his successors.
The special master reported a finding ‘upon all the evidence, that the defendant has not sustained the burden of proving that the enclosure and occupancy of the extra land was under claim of right and adverse or with an intention to appropriate and hold the same as owner, to the exclusion rightfully or wrongfully, of everyone else.’ But he reported also that he should have found to the contrary had not the defendant testified that her father, while negotiating for his purchase and just before he built a fence in the position now complained of, told her that someone from the Holyoke Water Power Company had ‘told him he could take the waste land and use it * * * he could close that piece in * * * it was no good * * * it did not belong to * * * [the] Holyoke Water Power Company * * * he could fence the land in and use it...
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