Shapine v. Shaw

• Decision Date: 29 November 1889
• Citation: 150 Mass. 262,22 N.E. 894
• Parties: SHAPINE v. SHAW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 262

22 N.E. 894

SHAPINE v. SHAW.

Supreme Judicial Court of Massachusetts, Essex.

November 29, 1889

COUNSEL

N.C. Bartlett, for plaintiff.

Brickett & Poor, for defendant.

OPINION

FIELD J.

Copies of the deeds put in evidence are not annexed to the exceptions, which contain only a general statement of the lots of land conveyed by the deeds. The plaintiff acquired title under the will of his wife, Mary Shapine, and she acquired title from Andrew W. Hammond, by warranty deed dated March 6, 1877. The lot conveyed to her was bounded on the north by "a street called 'Broadway,"' and on the west "by a private way;" "and by said deed Mary Shapine was given a right of way in said way," etc. Mary Shapine entered into possession under the deed immediately after it was executed, and she and her husband have occupied the land conveyed, and have used the way in common with others, ever since. We assume that the grant to Mary Shapine of the land and of the right of way was to her and her heirs and assigns. The defendant owned the lot next south of the plaintiff's lot, in the rear, and has lived on it for 33 years, and a deed to him from Edward A. Hammond, a son of Andrew W. Hammond, dated April 23, 1858, was put in evidence, "bounding the defendant, on his westerly side by said private way." The defendant, having no other way to get out from his premises excepting by said private way though his deed gave him no specific right therein, had "used the same, in connection with others who had a right to use it, uninterruptedly for said thirty-three years." The defendant never enjoyed or claimed the exclusive use of said private way, but always used it in common with others who had a right to use it. A deed was also put in evidence from one Brickett to one Tremblay, dated July 29, 1886, of the lot of land on the westerly side of this private way, "directly opposite the house of the defendant," in which the premises were described as "beginning at the northeasterly corner thereof, by a private way, *** and thence by said private way," etc. All these deeds, apparently, were admitted in evidence without objection. The defendant asked the court "to rule that the evidence was not sufficient to justify a finding that the plaintiff had any right of way in said way, as it did not appear that the grantor of Mrs. Shapine, viz., Andrew W. Hammond, had any right in or to said way at the time he deeded to Mrs....