Stevens v. Young

• Decision Date: 25 June 1919
• Citation: 123 N.E. 777,233 Mass. 304
• Parties: STEVENS v. YOUNG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 304

123 N.E. 777

STEVENS

v.YOUNG et al.

Supreme Judicial Court of Massachusetts, Essex.

June 25, 1919.

Exceptions from Land Court, Essex County; C. T. Davis, Judge.

Proceedings for registration of title to land by Lydia M. Stevens against Ebenezer G. Young and others. Decree for petitioner, and respondent Young excepts. Exceptions overruled.

This was a proceeding to register in the land court a certain parcel of land described in the petition as follows:

‘A certain parcel of land with the buildings thereon situate in said Swampcott, bounded and described as follows: Easterly by Humphrey street 138.39 feet; northerly by Crossman avenue 402.47 feet; westerly by land now or formerly of James L. Taylor and George H. Lampard 135.75 feet; and southerly by land now or formerly of Ebenezer G. Young 431.56 feet, containing 56,610 square feet of land, and be said contents and any or all of said measurements more or less.’

The above-described land is shown on a plan filed with said petition, and all boundary lines are claimed to be located on the ground as shown on said plan.

Said parcel is approximately rectangular in shape, and comprises lots 13, 14, 15, 16, 17, and 18, as shown on plan of land of S. J. Crossman, recorded in Essex So. Dist. Reg. of Deeds, book 1568, page 600. See Exhibit A. It also includes a parcel of land lying between 16 and 17, marked ‘Locust avenue’ on said plan. The respondent Young is the owner of lots 30 to 40, inclusive, on said plan.

The petitioner seeks to register her title to that part of Locust avenue between lots 16 and 17 without its being subject to any right of way for the benefit of the respondent Young or his land.

In 1889 one Crossman acquired title to a nine-acre tract, which included with others both the petitioner's and the respondent's land. The first conveyance made out of this original tract was made in 1900, when a block of four lots, being lots 13, 14, 15, and 16 on said plan, were conveyed to the petitioner's predecessor in title. This parcel was described as bounding by Locust avenue. The next conveyance was in 1906 to the immediate predecessor in title of the respondent, and included lots 30 and 40, inclusive, on said plan, and carefully described the parcel by reference to the recorded plan. It, however, described it as a solid tract without any reference to its lot numbers on said plan. On its northerly boundary it is described as ‘across land marked ‘Locust avenue’ on said plan.'

There is no reference other than that above quoted, to Locust avenue. The respondent's predecessor was given by said deed a right to use Maple and Crossman avenues as shown on said plan for street purposes in common with others, but there was no mention of any rights in Locust avenue. A copy of said deed marked ‘Exhibit C’ is annexed to and made a part of this bill of exceptions. In April, 1912, all the remaining lots were conveyed by reference to said plan, the lots on the westerly side of Locust avenue opposite those conveyed in 1900 being described as bounding easterly on Locust avenue. This deed contained the clause ‘together with the right of way in and over the streets or avenues shown on said plan as if the same were public highways.’ Of the lots so conveyed the petitioner in May, 1912, acquired lots 17 and 18 on said plan, which were described as bounding easterly by Locust avenue, and the deed contains the words, ‘together with a right of way in common with others so far as we are enabled to grant the same in and over the streets and avenues shown on said plan, as if the same were public highways.’ A copy of said deed marked ‘Exhibit D’ is annexed to and made a part of this bill of exceptions. The two lots thus conveyed were also made subject to certain restrictions, among them ‘that no part of any building shall be erected or placed within fifteen feet of the line of said Crossman or Locust avenues.’ The petitioner's predecessors therefore obtained title subject to the restrictions and conditions in their deed to the land on both sides of Locust avenue.

The principal question involved in the registration is the right of the respondent to use the land marked ‘Locust avenue’ as a right of way for the benefit of his land. The case was heard upon the petition and answer and the record title as shown by the examiner's report, and upon the stipulation that any part might treat as in evidence anything appearing in the examiner's report, or upon the docket of the court. So much of the evidence as is material to the rights of the respondent in the locus is embodied in this bill. The respondent has acquired all the rights of his predecessor in title.

A copy of the plan above referred to is incorporated in and made a part of this bill of exceptions, and is marked ‘Exhibit A.’ The deed by which the petitioner acquired lots 13, 14, 15, and 16 on said plan is also incorporated in and made a part of this bill of exceptions, and is hereto annexed, marked ‘Exhibit B.’ The deed by which the respondent acquired his land is also incorporated in and made a part of this bill of exceptions, and annexed hereto, marked ‘Exhibit E.’ The decision of the land court is incorporated in and made a part of this bill of exceptions and is hereto annexed, marked ‘Exhibit F.’ The court held as appears from said decision that the respondent had no right in or over any of the way marked Locust avenue, and ordered that a decree issue, registering the title of the petitioners accordingly. To this ruling the respondent seasonably alleged an exception, and now prays that this bill of exceptions be allowed.

The plan or plat recorded by the predecessor in title of parties follows:

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