Uliasz v. Gillette

• Decision Date: 03 March 1970
• Citation: 256 N.E.2d 290,357 Mass. 96
• Parties: Chester J. ULIASZ et al. v. Louise B. GILLETTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 290

256 N.E.2d 290

357 Mass. 96

Chester J. ULIASZ et al. v. Louise B. GILLETTE.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Dec. 4, 1969.

Decided March 3, 1970.

Philip H. Grandchamp, Adams, for respondent.

John A. Barry, Arnold L. Rose, Pittsfield, for petitioners.

Before SPALDING, CUTTER, KIRK, SPIEGEL and QUIRICO, JJ.

QUIRICO, Justice.

This is an appeal by the respondent from the final decree of the Probate Court in a suit in equity under G.L. c. 231A. By its decree the court declared that a parcel of land which the respondent claims to own had been dedicated to public use and was therefore subject to the petitioners' right to use it as a means of ingress and egress to and from their abutting land.

The judge made a report of the material facts found by him, and the evidence is reported. G.L. c. 215, §§ 11, 12. All questions of law, fact and discretion are open for our decision. We may find facts for ourselves in addition to those found by the judge and, if satisfied that he was plainly wrong in making certain findings, we may find facts contrary to such findings made by him. Lowell Bar Assn. v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27; Shattuck v. Wood Memorial Home, Inc., 319 Mass. 444, 445, 66 N.E.2d 568; Gordon v. O'Brien, 320 Mass. 739, 740, 71 N.E.2d 221; White v. White, 322 Mass. 30, 31, 76 N.E.2d 15f Sulmonetti v. Hayes, 347 Mass. 390, 391, 198 N.E.2d 297.

The facts, most of which were found by the trial judge, are as follows. In 1913, J. W. Wilbur (Wilbur) owned a large tract of land in Pittsfield. He caused a plan to be prepared and recorded in the registry of deeds showing a layout of a proposed development of the entire tract into 440 numbered lots on eight proposed streets. It showed a number of lots extending from the easterly line of Sheffield Street (the most easterly of the four north-south streets) to the easterly line of Wilbur's tract. It also showed Savoy Street (the most northerly of the four east-west streets) crossing Sheffield Street and continuing between two lots to the easterly line of Wilbur's tract. This case involves a controversy over the rights of the parties in and to that dead-end portion of Savoy Street located east of Sheffield Street, and shown on the plan as bounded on its southerly side by lot No. 394 and on its northerly side of lot No. 395, both of which are owned by the respondent. A sketch of the area involved accompanies this opinion.

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

The respondent became the owner of lot No. 394 in 1948 ¹ and of lot No. 395 in 1960. Her chain of title extends back to Wilbur through a series of mesne conveyances. All those conveyances which are in evidence describe the lots by their number on the Wilbur plan of 1913, and they identify the plan by its name, date and book of recording.

In 1958 the respondent executed a deed to a straw, purporting thereby to convey to him the portion of Savoy Street at issue here. In the deed she stated that '(m)y title to the above described parcel is based upon the adverse possession and usage of the same by myself and my predecessors in title for a period exceeding twenty years.' On the same date the straw conveyed the parcel back to her by a deed which omitted the reference to adverse possession. As a result of the recording of these two deeds the board of assessor of the city of Pittsfield designated the area conveyed as lot No. 441 on their map of land in that area, and they have assessed the lot to the respondent each year from 1959 to date. The portion of Savoy Street at issue in this case will therefore be referred to herein as lot No. 441.

On April 27, 1962, the petitioners purchased two contiguous parcels of land by a single deed from one Kolodrubski and his wife. ² The deed describes the first parcel conveyed as having a westerly line 752 feet long. That line is in part the common boundary between the petitioners' land and the respondent's lots Nos. 394 and 395, and the disputed lot No. 441. The length of the common boundary with lot No. 441 is about fifty feet. The petitioners' land on its east side presently fronts on Highland Avenue, a public way, for a distance of sixty feet. This provides them with access to and egress from all of their property without going over any part of lot No. 441, or any part of the original Wilbur tract.

The portion of Savoy Street now known as lot No. 441 has never been laid out or established as a public way under G.L. c. 82. It has never been improved or constructed by the city or anyone else for use as a way. The city has never done or performed any work or made any improvements thereon. There are no water, sewer or other services or utilities installed thereon or thereunder.

Certain other facts of limited application to specific issues will be stated when those issues are discussed.

The petitioners base their claim of right to use lot No. 441 for access to and from their property on several grounds. We shall consider each ground separately.

1. The petitioners contend that they must prevail because they have alleged in their bill that lot No. 441 is a public way, and the respondent, while denying the allegation, made no 'special demand for its proof' as required by G.L. c. 231, § 30. ³ Their allegations in this regard are: (a) that 'Savoy Street is laid out in said * * * (development plan of Wilbur) as a public way, road and/or thoroughfare'; (b) that 'They have considered it an open and public right to way or thoroughfare'; and (c) that they and others 'used Savoy Street in its entirety, as shown on said map * * * (of Wilbur) as a public way, street or thoroughfare for more than 20 years.' These allegations taken singly or collectively do not constitute an allegation that lot No. 441 is a public way within the meaning of G.L. c. 231, § 30. On these allegations the respondent's denial without a special demand for their proof does not constitute an admission that the place in question is a public way. In any event, this point was not raised during the trial at which much evidence was presented by both sides on this very issue whether the place was a public way. It cannot be raised for the first time in this court. Even if the petitioners' allegations were sufficient to entitle them to the benefit of the statute, we would say that the issue having been fully tried, the case is an appropriate one for the allowance of an amendment to the respondent's answer to include the special demand for proof required by the statute. See Carson v. Brady, 329 Mass. 36, 41, 106 N.E.2d 1.

2. The petitioners contend that they have acquired an easement over lot No. 441 by prescription. Their predecessors in title, the Kolodrubskis, owned the parcel which abutted on lot No. 441 from 1931 until they conveyed it to the petitioners in 1962. ⁴ They used lot No. 441 to some extent in trucking gravel out from their land. However, such use was with the permission of Wilbur, and not adverse. That use terminated by 1938 when Kolodrubski built a fence to contain cattle and thus sealed his common boundary with lot No. 441. That fence continued to an indefinite date after the Kolodrubskis conveyed the property to the petitioners in 1962. Neither they nor the petitioners made any use of lot No. 441 while the fence was standing. After the fence was removed the petitioners and their son used lot No. 441 from time to time as a short cut from their property to Sheffield Street. The use was irregular, and it was never by vehicle. These facts do not constitute the required open, notorious and adverse use for twenty years over the land of another to ripen into an easement by prescription. See G.L. c. 187, § 2; Tucker v. Poch, 321 Mass. 321, 323, 73 N.E.2d 595, and cases cited; Restatement: Property, §§ 457, 458.

3. The petitioners contend that they have acquired an easement over lot No. 441 by necessity. This contention is without merit for two reasons. First, there exists no necessity sufficient to give rise to the implication of any such easement. The petitioners have access to and egress from their property directly onto Highland Avenue which is a public way. ⁵ While it is settled that the necessity which may give rise to the implication of an easement need not be an absolute physical necessity, yet it must be a reasonable necessity. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 101, 105, 187 N.E. 227, and cases cited. Supraner v. Citizens Sav. Bank, 303 Mass. 460, 464, 22 N.E.2d 38. In this case there is no reasonable necessity for implying any easement in favor of the petitioners. Second, easements because of necessity can be implied only for the benefit of or against parties to a particular conveyance and their successors in title, and not for the benefit of or against strangers to the chain of title. Restatement: Property, §§ 474--476.

4. The petitioners contend that the respondent is estopped to deny that lot No. 441 is 'an easement, right of way and/or thoroughfare for public use' because all of the deeds in the respondent's chain of title, starting with the developer Wilbur, refer to Savoy Street and to Wilbur's recorded plan showing that street. It is a well settled rule that a grantor who conveys land by a description incorporating therein a recorded plan on which a street is shown, or by a description showing the land to be bounded on a street or way, is thereaftr estopped, as are his successors in title, from denying the existence of an easement of travel over that street or way for the benefit of the grantee and his successors in title. Downey v. H. P. Hood & Sons, 203 Mass. 4, 10, 89 N.E. 24; Stevens v. Young, 233 Mass. 304, 309, 123 N.E. 777; Goldstein v. Beal, 317 Mass. 750, 755, 59 N.E.2d 712; Casella v. Sneierson, 325 Mass. 85, 89, 89 N.E.2d 8. It is equally clear that only the grantee in such deed and his successors in title to the granted property are entitled to the benefit of such estoppel; and...