Thompson v. Lorden

• Decision Date: 01 July 1970
• Parties: Hugh THOMPSON et al. 1 v. Eugene H. LORDEN, Jr. et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 683

260 N.E.2d 683

358 Mass. 69

Hugh THOMPSON et al. ¹ v. Eugene H. LORDEN, Jr. et al. ²

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 6, 1970.

Decided July 1, 1970.

Robert D. O'Leary, Boston, for defendants.

Morris M. Golding, Boston, for plaintiffs.

Before WILKINS, C.J., and CUTTER, KIRK, SPIEGEL and QUIRICO, JJ.

CUTTER, Justice.

The plaintiffs sought by an equity proceeding in the Land Court declaratory and injunctive relief concerning their interests in the land shown as Harbor View Park on an 1897 plan of Harbor View Park in Milton. This is the same general area considered in Chater v. Board of Appeals of Milton, 348 Mass. 237, at 239, 202 N.E.2d 805, which shows the pertinent portion of the 1897 plan, including the park itself and the adjacent lots and ways, more fully described in that opinion (240--241, 202 N.E.2d 805). A sketch plan (based on one attached to the final decree in the equity proceeding) of the park and adjoining ways and lots (as the area would exist after the Land Court proceedings) is set out herewith. The Lordens own lots 1, 2, and 3 shown on that sketch plan and shown as (lots 1 to 4) 'Harbor View Park' in the 1897 plan, as printed in 348 Mass. at 239, 202 N.E.2d 805. Various plaintiffs (fn. 1) own the adjacent lots on which their names severally appear on the sketch plan.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plaintiffs alleged in the equity proceeding (see bill as amended) that each of them had purchased his lot on the faith of the general 1897 plan showing a large development, including oval shaped areas marked 'Harbor View Park,' and many ways and lots nearby; that they expected the oval areas to be maintained as a park forever; and that the Lordens planned to cut down the trees in the park area and to erect a building or buildings there. Jury issues were granted, the answers to which established, so far as these constituted issues of fact, (1) that Harbor View Park was not 'intended by the then (1897) owners to remain permanently as park land for the benefit of the other lots shown on * * * (the 1897) plan'; (2) that the plaintiffs did not purchase their lots in reliance on the permanent character of the park; and (3) that the plaintiffs had 'waived any rights they might have in the park land.' Following receipt of the jury's answers, the equity proceeding was further tried, together with a petition by the Lordens for registration of the park area free from any encumbrances except a sewer easement.

The Land Court judge made findings, adopted by him as a report of material facts. He concluded (a) that the lots owner by the Thompsons, the Sarafs, the Panoras, the Hartleys, and the O'Learys extend in fee to the center of the way marked (on the attached plan) 'Harbor View Park' adjacent to those lots respectively; (b) that there is appurtenant to each of those lots and to the lots of the Ruteckis the right to use the way (thus marked), on which each such lot is bounded, 'for all purposes for which ways * * * are commonly used in * * * Milton,' such interest to be 'subject to the rights of all others entitled to use' such way. A final decree was entered in the equity proceeding declaring the interests of the plaintiffs in accordance with the judge's conclusions. In the registration case, a decision was made (in the same document with the order for a decree in the equity proceeding) that the Lordens were entitled to registration of the park area, subject to the rights of others in, and to use, the ways shown on the plan. The Lordens appeal from the final decree and from certain interlocutory decrees, mentioned below.

1. Upon return of the jury's answers to the framed issues, the judge denied the Lordens' motion that a final decree be entered dismissing the bill. He correctly ruled (a) that the jury issues disposed only of the plaintiffs' possible interest in the park land as such, and (b) that there was a further issue, under the general prayers of the bill, to be heard concerning 'the (plaintiffs') rights * * * in the ways shown on * * * (the) plan, which ways about the * * * (plaintiffs') lots.' The plaintiffs in their brief concede that they have no interest in the park land. They seek now 'only to protect their interests in the ways.'

2. The Land Court judge's decision in the registration case (from which no appeal appears to have been claimed) and his findings show that (a) in earlier conveyances of land within the area here under consideration and (b) in the several deeds to (or certificates of title of) the plaintiffs, their lots are described (in terms which are not wholly uniform) as bounded by ways or streets which are shown on the 1897 plan and on the plan printed herewith. Some deeds expressly refer to rights to use the ways shown on the plan. ³

The plaintiffs rely on the principle stated in Casella v. Sneierson, 325 Mass. 85, 89, 89 N.E.2d 8, 10, 'that, when a grantor conveys land bounded on a * * * way, he and those claiming under him are estopped to deny the existence of such * * * way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.' See Brassard v. Flynn, 352 Mass. 185, 188--189, 224 N.E.2d 221 (referring to the rule that such a boundary is 'presumed to mean the middle of the way'); Labounty v. Vickers, 52 Mass. 337, 344, 225 N.E.2d 333. See also ULIASZ V. GILLETTE, MASS., 256 N.E.2D 290.^A Cf. Rahilly v. Addison, 350 Mass. 660, 662--663, 216 N.E.2d 414; Deacy v. Charles Constr. Co., Inc., 354 Mass. 675, 679, 241 N.E.2d 397, 400 (no rights in a passageway which 'did not bound the property conveyed' and was 'not mentioned in the grant'). Cf. also Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350, 353--355, 150 N.E. 203; Goldstein v. Beal, 317 Mass. 750, 755--756, 59 N.E.2d 712; pointing out that, where there has been application of the rule quoted from the Casella case, 325 Mass. 85, 89, 89 N.E.2d 8, supra, 'it will usually appear that the way referred to is in use or actually staked out on the land.' The Goldstein case (at 755, 59 N.E.2d at 715) recognizes that the 'purpose and effect of a reference to a plan in a deed is a question of the intention of the parties.'

In the present case, there is somewhat meager evidence of actual use or staking out of the more southeasterly way marked 'Harbor View Park' on the accompanying sketch plan. Some use of that way by the Thompsons, Sarafs, Panoras, and Hartleys does appear. The deeds to them make reference to the way as a boundary and earlier deeds (in the several chains of title) within fifteen years after the 1897 plan ⁴ give even more explicit indication of an intention to create rights of way in the ways shown on the 1897 plan.

The present record is in some respects obscure. The equity proceeding was tried in part with a registration proceeding in which the Land Court judge had occasion to consider the whole chain of title of the locus, only portions of which are before us. We...