Waterman v. Waterman, 2908

• Court: Rhode Island Supreme Court
• Writing for the Court: ROBERTS; FROST
• Citation: Waterman v. Waterman, 175 A.2d 291, 93 R.I. 344 (R.I. 1961)
• Decision Date: 24 November 1961
• Docket Number: No. 2908,2908
• Parties: Eleanor WATERMAN et al. v. Nicholas Sheldon WATERMAN, Jr. Equity

Page 291

175 A.2d 291

93 R.I. 344

Eleanor WATERMAN et al. v. Nicholas Sheldon WATERMAN, Jr.

Equity No. 2908.

Supreme Court of Rhode Island.

Nov. 24, 1961.

John C. Burke, Newport, for complainants.

Paul M. Chappell, Portsmouth, for respondent.

ROBERTS, Justice.

This bill in equity was brought to enjoin the respondent from interfering with the use by the complainants of a right of way over certain lands located on the east shore of the Seaconnet River in the town of Tiverton. The cause was heard by a justice of the superior court who thereafter entered a decree denying and dismissing the bill of complaint. From that decree the complainants have prosecuted this appeal.

The land over which the right of way here being considered was granted was, at the turn of the century, part of a thirty-acre farm owned by Amanda R. Grinnell. The farm, abutting on the westerly side of Puncatest Neck Road, extended to the shore of the Seaconnet River, hereinafter sometimes referred to as the river. That part of the right of way which complainants contend has been obstructed by respondent's erection of a fence thereon lies within a portion of the farm that had been sold in 1905 by Mrs. Grinnell to Fred E. Waterman.

It appears from the record that Mrs. Grinnell had conveyed a portion of the farm which comprised the northwest corner thereof to James W. Bence, a part thereof being conveyed in 1900 and the remaining part in 1905. In the two conveyances above referred to, a right of way to the properties purchased by Bence was granted in identical language as follows: 'Together with a right of way from the Puncatest Neck Road to the Seaconnet River and Northerly along the edge of the bank over the cart path now in use.' The land thus conveyed to Bence is now owned by Mrs. Alice S. Buffington.

In December 1905 and a few days after Mrs. Grinnell had made the second conveyance to Bence, she sold to Fred E. Waterman a portion of the farm that abutted on the shore of the river and lay to the south of the Bence land. In this conveyance a right of way to provide access to the parcel sold was granted in slightly different terms from the right of way granted to Bence. The language of the grant here was: '* * * together with a right of way from the Puncatest Neck Road to the Seaconnet River over the cart path now in use and along the edge of the bank to the property herein described.' In the habendum clause of the deed she warranted that the premises conveyed were free from all encumbrances 'except a right of way along the cart path and edge of the bank to the premises of James W. Bence.'

In June 1907 Mrs. Grinnell made a further conveyance to Fred E. Waterman of the land lying to the east of both the Bence and Waterman purchases, which is referred to as 'back land.' It does not appear that this conveyance contained any grant of a right of way. By virtue of these conveyances Fred E. Waterman became the owner of an L-shaped parcel of land which lay to the south and east of the Bence land. Hereinafter the right of way granted to Bence and Waterman will be referred to as the Grinnell right of way.

In 1954 the Fred E. Waterman land, on the petition of his heirs, was partitioned by a decree of the superior court. The court-appointed commissioner filed his report, recommending therein that the land be divided into three lots. Two of these lots, designated as parcels 'A' and 'B' on a plat attached to the report, abutted on the river. The third parcel, designated as 'C' on the commissioner's plat, comprised the back land, so called. The report also provided a right of way across parcel B to the shore of the river as an easement of way appurtenant to parcel C. This way consisted of a ten-foot strip of parcel B abutting the southerly boundary thereof. Another easement appurtenant to parcel C was also provided in the beach to the west of parcel B. A decree was properly entered authorizing the commissioner to convey these parcels to the heirs of Fred E. Waterman designated in the report.

These parcels were conveyed to the designated heirs by commissioner's deeds, each of which was dated July 16, 1954. Parcel A, after a series of conveyances, was conveyed to Isis O. Waterman, the mother of the present complainants, who now holds title thereto. Parcel B was conveyed subject to the easements created therein in favor of parcel C to one of the Waterman heirs, who in turn conveyed it to his son Nicholas Sheldon Waterman, Jr., who now holds title thereto and is the respondent in the instant suit. Parcel C, conveyed to one of the Waterman heirs, after a subsequent conveyance was conveyed to Eleanor Waterman and to Dorothy Waterman Fell, who now hold title thereto and are the complainants in the instant suit.

It is not disputed that in order to pass from Puncatest Neck Road to parcel C, complainants must pass along the Grinnell right of way to the point where it intersects with the commissioner's right of way and, thence turning easterly, proceed along the latter right of way to their land. The instant litigation follows a long controversy as to the location of the precise point of intersection of the Grinnell right of way with the commissioner's right of way. Despite the confused state of the evidence, it appears that the cart path, upon which was imposed the Grinnell right of way from Puncatest Neck Road, reaches the edge of the bank at some unspecified point south of the southerly line of parcel A and, then turning in a northerly direction, runs across both parcels A and B to the Buffington land.

It is the contention of complainants that these ways intersect at a point in parcel B where the southerly line of that parcel meets the bank of the river. In other words, they contend that the cart path crosses the property line between parcels A and B and intersects the commissioner's right of way literally at the edge of the bank. According to the evidence adduced on complainants' behalf, in passing along the cart path to proceed to parcel C, they will reach its intersection with the commissioner's right of way at the edge of the river bank where, turning east, they pass between the southerly side of respondent's house and the south line of respondent's property as they proceed along the commissioner's right of way easterly to parcel C.

The respondent, on the other hand, argues that the cart path did not...