Supraner v. Citizens Sav. Bank
| Decision Date | 30 June 1939 |
| Citation | 303 Mass. 460,22 N.E.2d 38 |
| Parties | BEATRICE SUPRANER v. CITIZENS SAVINGS BANK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 4, 1939.
Present: FIELD, C.
J., QUA, DOLAN COX, & RONAN, JJ.
Way, Private creation. Easement. Mortgage, Of real estate: partial release, discharge. License.
A mortgagee of two four story buildings divided by a party wall, in one of which was a stairway that was the only access to the upper stories in both buildings, by a partial release from his mortgage of the building including the stairway describing the released premises by metes and bounds and containing a provision that the release should "not in any way affect or impair" his right "to hold under the" mortgage "as security for the sum remaining due thereon . . . all the remainder of the premises therein conveyed," did not expressly or impliedly reserve an easement to use the stairway for the benefit of the building not released; and even if any such easement had been reserved, it was lost by a later discharge of the mortgage.
Upon the expiration of the term of an indenture between the owners of adjoining buildings granting the owner of one the right to use certain parts of the other for ten years, an oral agreement to continue the arrangement gave the first owner merely a license revocable at will.
BILL IN EQUITY filed in the Superior Court on August 18, 1938. The final decree dismissing the bill was entered by order of Hurley, J.
W. Hartstone, (H.
N. Hartstone with him,) for the plaintiff.
J. M. Swift, for the defendant.
This is a bill in equity in which the plaintiff seeks to establish, as appurtenant to a building owned by her, an easement of way in and over an adjoining building owned by the defendant, and to enjoin it from obstructing or in any way interfering with the alleged easement. The case was referred to a master; his report, to which neither party filed objections, was confirmed by interlocutory decree; and a final decree was entered that the plaintiff had no easement as alleged, and dismissing the bill. The plaintiff appealed. The evidence is not reported; it does not appear that the final decree was erroneously affected by the interlocutory decree (G.L. [Ter. Ed.] c. 214, Section 27) and the master's findings of fact are conclusive unless it appears from the report itself that they are wrong. General Fruit Stores, Inc. v. Markarian, 300 Mass. 90 , and cases cited.
The master found that, up to 1899, Merchants Block on North Main Street in Fall River, comprising the building of the plaintiff and that of the defendant, together with the land beneath them, and a strip of land some twelve feet wide, not built over, at the north side of the block, was owned in fee by Edmund C. Gifford, subject to two mortgages to the Fall River Savings Bank. A party wall divides the buildings from front to rear. The plaintiff owns that portion of the block to the north of this wall, including the twelve-foot strip, and the defendant, that portion to the south. A front entrance, stairways, and hallways in the defendant's building afford the only access to the second, third, and fourth floors of the plaintiff's building through openings in the party wall. This condition as to entrance existed as far back at least as 1895. On February 21, 1899, the Fall River Savings Bank gave a partial release of its mortgages of the southerly portion of the block (the building now owned by the defendant), the northerly bound being described as running easterly "through the middle or Centre of a brick wall one hundred twenty two and twenty five one hundredths feet to North Main Street . . . ." By deed dated February 25, 1899, with full covenants of warranty, Gifford conveyed the southerly part of the block, being the area covered by the partial release, to Edmund J. Sokoll through whom, by mesne conveyances, the defendant holds title. By instrument dated April 10, 1899, the Fall River Savings Bank discharged its two mortgages. By instrument dated April 12, 1899, Gifford gave to the Bristol County Savings Bank a mortgage of that portion of the block then held by him, including the twelve-foot strip, that is, the northerly portion now owned by the plaintiff. A portion of the description in this mortgage is, "Beginning at the south easterly corner of the lot to be described and at the north easterly corner of land of Edmund
J. Sokoll, at a stone bound, thence running westerly in line of land of said Sokoll, through the middle of a party wall, One Hundred Twenty Two and 25/100 . . . feet to a stone bound.
" On October 23, 1922, this mortgage was replaced by another to the Bristol County Savings Bank. The plaintiff derives her title from the Bristol County Savings Bank, which foreclosed the last described mortgage.
On February 27, 1899, Gifford and Sokoll executed an indenture by the terms of which Sokoll granted to Gifford, for a term of ten years from date, the right to the use and enjoyment of the entrance, stairways, and hallways in question, the toilet rooms on the second floor, and certain other parts of the building, and Gifford agreed to furnish heat for the second and third floors, to light the entrance, hallways, stairways, and toilet rooms, and to provide for their suitable care. At the expiration of this term of ten years the parties agreed that it might be continued without any written extension. This indenture and the deed from Gifford to Sokoll were both recorded on March 2, 1899. On July 28, 1938, the defendant, which acquired its title on April 28, 1938, notified the plaintiff that it proposed to close the openings in the wall and to confine the use of the stairways in question to the use of its own building, whereupon this bill was brought.
The master found specifically that from the time of the execution of the indenture the easement was exercised under and by virtue of the terms of the indenture, and that, from and after the determination of its term of ten years, it was exercised by extension of the operation of the indenture, and that no rights had been acquired by the plaintiff or her predecessors in title by adverse use. He also found that the indenture and deed from Gifford to Sokoll constituted one transaction, and that there was never in the contemplation of the parties to these instruments any right or easement affecting the buildings in question other than that expressed in the indenture, and that it was "not only not the intention of the parties but was contrary to the intention of the parties that there should be any right or easement other than that expressed in the indenture."
The plaintiff contends that an easement in favor of her building was reserved, either expressly or impliedly, by the Fall River Savings Bank when it released the southerly portion of the block from its mortgages, and that such easement passed to the plaintiff by mesne conveyances. The release, which covered both mortgages, contains the following language "But this Instrument shall not in any way affect or impair the right of the said Corporation [the bank] to hold...
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