Sanborn v. Rice

• Decision Date: 06 April 1880
• Citation: 129 Mass. 387
• Parties: Edwin L. Sanborn v. William Rice
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 387

Edwin L. Sanborn v. William Rice

Supreme Court of Massachusetts

April 6, 1880

[Syllabus Material] [Syllabus Material]

Suffolk. The first case was an action of tort for breaking and entering the plaintiff's close in Boston. Writ dated May 28, 1878. Trial in the Superior Court, before Colburn J., who reported the case for the determination of this court, in substance as follows:

The plaintiff and the defendant are owners of adjoining estates on Rutland Street, on each of which is a brick house covering the entire width of the lot, with a partition wall between them eight inches thick. The plaintiff contended that the division line between the two estates was the centre of this partition wall. The trespass complained of was a wall built by the defendant, in January 1878, on this partition wall, which covered the entire space of eight inches in front, and ran at an acute angle towards the rear, and there extended a little beyond the centre line.

The city of Boston, before 1858, owned a tract of land on the northeasterly side of Rutland Street, and divided it up into eighteen lots, which were shown on a plan, and numbered from 1 to 18. On January 1, 1858, the city conveyed the lot now occupied by the plaintiff to William E. Blanchard, by deed as follows: "Beginning at the southerly corner of the said land, being a point in the northeasterly line of Rutland Street, distant two hundred and thirty feet northwestwardly from the westerly corner of the brick fence of the primary school-house lot, thence running northwestwardly, bounded by Rutland Street, twenty-one feet; thence northeastwardly, parallel to Newland Street, ninety feet; thence southeastwardly, bounded by a passageway twenty feet wide running parallel to Rutland Street, twenty-one feet; and thence southwestwardly, parallel to Newland Street, ninety feet, to the point of beginning; containing eighteen hundred and ninety square feet, more or less. Being lot numbered 12 on a plan recorded with plans of city lands sold, book 2, leaf 79, in the office of the superintendent of public lands. It is understood that this conveyance is given and accepted in full performance of a certain agreement, dated May 1, 1857, given by the said city of Boston to the said William E. Blanchard. And this conveyance is also subject to the following conditions: 1. All taxes and assessments which have been laid or assessed upon the said premises previous to the execution of this conveyance shall be paid by the said William E. Blanchard, his heirs and assigns. 2. The front line of the building which may be erected on the said lot shall be placed on a line parallel with and fifteen feet back from the said Rutland Street. 3. The building which may be erected on the said lot shall be of a width equal to the width of the front of the said lot. 4. No dwelling-house or other building except the necessary outbuildings shall be erected or placed on the rear of the said lot. 5. No building which may be erected on the said lot shall be less than three stories in height exclusive of the basement and attic, nor have exterior walls of any other material than brick, stone or iron, nor be used or occupied for any other purpose or in any other way than as a dwelling-house during the term of twenty years from October 1, 1857. It is understood that the building at present erected upon the said lot is constructed in conformity with the above conditions, and is satisfactory to the said city of Boston."

In June 1858, Blanchard conveyed this lot of land "with the new brick dwelling-house thereon standing" to Richard C. Cabot, through whom by mesne conveyances it came to the plaintiff in 1873. All of these deeds used the same language, in describing the boundaries of the land, as the deed to Blanchard, and conveyed the land subject to the conditions contained in that deed, but did not more specifically set them forth.

The defendant derived title to his lot through a deed from the city of Boston to William E. Blanchard, dated May 14, 1858, which bounded and described it as follows: "Beginning at the southerly corner of the said land, being a point in the northeasterly line of Rutland Street, distant two hundred and fifty one feet northwestwardly from the westerly corner of the brick fence at the primary school-house lot; thence running northwestwardly, bounded by Rutland Street, twenty-one feet; thence northeasterly, parallel to Newland Street, ninety feet; thence southeastwardly, bounded by a passageway twenty feet wide, running parallel to Rutland Street, twenty-one feet; and thence southwestwardly, parallel to Newland Street, ninety feet, to the point of beginning; containing eighteen hundred and ninety square feet, more or less. Being lot numbered 13 on a plan recorded with the plans of city lands sold, lib. 2, fol. 79, in the office of the superintendent of public lands." The deed also stated that the conveyance was given and accepted in full performance of an agreement, dated May 1, 1857, of the city of Boston with Blanchard; and that the conveyance was also subject to certain conditions, which were set forth at length, and were the same as in the preceding deed to Blanchard, and contained the same recitals.

On September 28, 1858, Blanchard conveyed lot 13 to Owen Bearse, by deed which described the two side lines as running "to and through the centre of the brick partition wall"; and the description was the same in the subsequent deeds through which the defendant claimed title.

The plaintiff put in evidence the plan of the land referred to in the deeds of the plaintiff and of the defendant. The house of the plaintiff was occupied by him from September 10, 1873; and he was in occupancy of the same at the time when the acts complained of were done. The house, as constructed and existing at this time, occupied the ground to the centre of the partition wall, and was numbered 67, and the defendant's house, as constructed and existing at the same time, occupied the land to the same centre line, and was numbered 69; each of them as thus located measuring twenty-one feet as the width of the houses respectively, including one half of the partition wall.

A surveyor called by the plaintiff testified that all of the lots shown on the plan are now covered with brick houses contained in one block of the width indicated by the plan, the plan being made upon a scale shown thereon; that the house 67 stood on lot 12, as shown by said plan; that to fix the line between lots 12 and 13, he commenced at the line of Shawmut Avenue, as given to him by the city surveyor, and measured off five hundred and thirty-one feet and six inches, and this brought the centre of the wall of the houses on lots 12 and 13 into...