Tourles v. Grogan

• Decision Date: 31 October 1940
• Citation: 29 N.E.2d 691,307 Mass. 70
• Parties: TOURLES v. GROGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 70

29 N.E.2d 691

TOURLES

v.GROGAN.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 31, 1940.

Suit in equity by Efstrateos G. Tourles against William H. Grogan to compel the defendant to execute and deliver to the plaintiff a release of a right of way over plaintiff's land. From a final decree dismissing the bill, the plaintiff appeals.

Decree affirmed.Appeal from Superior Court, Franklin County; Collins, Judge.

Argued before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

W. A. Davenport, of Greenfield, for plaintiff.

S. Blassberg, of Greenfield, for defendant.

COX, Justice.

This bill in equity, filed on September 2, 1938, was referred to a master and the plaintiff appealed from the final decree dismissing the bill.

Prior to 1920, one DeLongechamps owned a farm fronting on the west side of a road, and the defendant owned some land with buildings thereon at or near the southwest corner of that farm and running to the west, ‘not being visible from said road.’ On December 1, 1920, DeLongechamps conveyed a right of way over his land to the road to the defendant. This conveyance was duly recorded. In 1926 DeLongechamps conveyed his farm to the plaintiff, but his deed, which was recorded, contained no mention of the right of way previously conveyed to the defendant. In 1928 the defendant conveyed his land, together with said right of way, to one LaPalm, and at the same time LaPalm mortgaged ‘the same land and said right of way’ to the defendant. Both deed and mortgage were recorded on September 6, 1928. On November 24, 1928, LaPalm conveyed to the plaintiff ‘all his right, title and interest in said right of way, then being subject to his mortgagee's rights as aforesaid,’ and at the same time one Cote, who owned land on the west side of said road adjoining land of the plaintiff on the south, conveyed another right of way along his north line from the road to a corner of the plaintiff's land to LaPalm. Both instruments were recorded on December 5, 1928. On April 26, 1930, the defendant foreclosed his mortgage and became the owner of the premises therein described. Shortly after the foreclosure, LaPalm ‘without other payment,’ conveyed the ‘so called’ Cote right of way to the defendant. These instruments of transfer were recorded. In 1928 the plaintiff saw defendant using the original right of way and eventually brought suit against DeLongechamps ‘under the warranty on account of * * * [the] incumbrance.’ ‘Shortly thereafter, * * * the said second right * * * of way appears to have been given in settlement, by the participating parties, and as a substitute for the earlier one over DeLongechamp's land, which, in turn, was released by LaPalm, and the action abandoned.’ LaPalm, by this settlement, acquired a ‘new, wider and more direct outlet from his land to the road and the plaintiff, as he thought, an extinguishment of the annoying incumbrance over his land. This Cote right of way, so called, for the most part, is much superior to the earlier one, but, in time of high water in the spring, is subject to troublesome overflows, a difficulty, in present condition, not incident to the said first right of way which, throughout, is largely over higher land. Nevertheless, the parties to the lawsuit, to the new right of way, and to the instrument purporing to release said first right of way, were then well satisfied that the problem of that incumbrance on the plaintiff's farm was forever settled. However, although it is not too clear on the evidence just when the defendant first learned of the said settlement or of the giving of the new right of way it is certain there is no evidence shown that he was any party to same or that he did anything, intentionally, to subordinate his right of way, under his existing mortgage, at any time prior to the foreclosure or since.’ The defendant has continued to own the premises that he acquired under the foreclosure. He went over the so-called Cote right of way before the foreclosure, and he also went over the original right of way ‘a few times, presumable in time of high water, since. Once, especially, in 1932, he remembered. * * * He could not go throughout same to the road, however, as some of the easterly end of the course was obstructed with remains of structures.’

The evidence is not reported, and the master's findings of fact are conclusive, unless it appears from the report itself that they are plainly wrong. This court must decide the suit upon the report in accordance with its own judgment....