Teal v. Jagielo

• Decision Date: 07 March 1951
• Parties: TEAL et al. v. JAGIELO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 421

97 N.E.2d 421

327 Mass. 156

TEAL et al. v. JAGIELO.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 25, 1950.

Decided March 7, 1951.

M. F. Murphy and P. J. Murphy, Worcester, for plaintiffs.

No argument nor brief for defendant.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS, and COUNIHAN, JJ.

QUA, Chief Justice.

The plaintiffs appeal from a decree of the Superior Court dismissing their bill by which they sought to enjoin the defendant from interfering with the plaintiffs' use of Old Dudley Road as a way appurtenant to their land in Oxford. ¹

The evidence is printed with the record, but it is not properly before us and cannot be considered, since there was no order in the Superior Court providing for any report of the evidence. Although G.L. (Ter.Ed.) c. 214, § 24, as amended by St. 1947, c. 365, § 1, no longer requires that the request that the evidence be reported must be made before any evidence is offered, it is still necessary that the court act upon such request, whenever made, in accordance with Rule 76 of the Superior Court (1932). Anderson v. Learoyd, 176 Mass. 431, 57 N.E. 700; Lannin v. Buckley, 256 Mass. 78, 80-81, 152 N.E. 71; Brodrick v. O'Connor, 271 Mass. 240, 242-243, 171 N.E. 479; Abeloff v. Peacard, 272 Mass. 56, 59, 171 N.E. 14; Bowles v. Comstock, 286 Mass. 159, 162, 189 N.E. 785; Silke v. Silke, 325 Mass. 487, 91 N.E.2d 200; Thayer Co. v. Binnall, 326 Mass. 467, 95 N.E.2d 193.

Nevertheless, we are of opinion that the somewhat meager findings of the judge disclose error in the dismissal of the bill. The facts which appear decisive are that under date of July 15, 1943, the defendant conveyed two adjoining parcels of land to Ernest L. Smith and Martha Smith; that in this deed the second parcel was bounded by 'the old Dudley Road'; and that under date of April 10, 1948, the Smiths conveyed this parcel to the plaintiffs by the same description, bounding it by 'the old Dudley Road,' and expressly including in the conveyance 'all rights which the grantors have in said Old Dudley Road.' Old Dudley Road was discontinued in 1833. The plaintiffs in their bill allege that the defendant claims ownership of the entire Old Dudley Road to the exclusion of any rights of the plaintiffs or of the public, and the defendant in his answer admits that he does so claim 'in so far as it relates to the road which adjoins' his property. The judge found that the defendant owns 'the land referred to as Old Dudley Road, which adjoins the land of the plaintiffs.'

We think that when the defendant conveyed the parcel in question to the Smiths bounding it by Old Dudley Road, he in effect created an easement of way in that road appurtenant to the land granted and estopped himself as against the Smiths and their grantees, the plaintiffs, from denying the existence of such easement over his land within the limits of the way. This principle of estoppel has been applied many times in similar circumstances, whether or not there was actually any way in existence at the time of the grant in the location designated. It seems to have become a rule of law rather than a mere canon of construction. Parker v. Smith, 17 Mass. 413; O'Linda v. Lothrop, 21 Pick. 292, 296-297; Parker v. Inhabitants of Framingham, 8 Metc. 260, 267-268; Tufts v. City of Charlestown, 2 Gray 271; Thomas v. Poole, 7 Gray 83; Gaw v. Hughes, 111 Mass. 296; New England Structural Co. v. Everett Distilling Co., 189 Mass. 145, 151-152, 75 N.E. 85; Oldfield v. Smith, 304 Mass. 590, 595-597, 24 N.E.2d 544; Frawley v. Forrest, 310 Mass. 446, 451, 38 N.E.2d 631, 138 A.L.R. 999; Patterson v. Simonds, 324 Mass. 344, 352, 86 N.E.2d 630; Casella v. Sneirson, 325...