Weeks v. Brooks

• Decision Date: 16 May 1910
• Parties: WEEKS v. BROOKS et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 458

92 N.E. 45

WEEKS v. BROOKS et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1910

The following is the opinion of Judge C. T. Davis in the land court and the compilation plan referred to therein and in the opinion of the Supreme Judicial Court:

'The only question in this case is whether certain restrictions imposed by an agreement between J. Q. Adams and others dated May 16, 1890, and recorded with Suffolk Deeds, Book 2039, page 469, upon lands owned by the several parties thereto, 'upon Commonwealth avenue in Boston, in the county of Suffolk, and Brookline, in the county of Norfolk between the junction of said avenue and Beacon street in said Boston on the east, and Essex street in said Boston and Brookline on the west,' apply to the land for which the petitioner in this case seeks registration, situated on Beacon street in Boston, at, or immediately to the east of the present junction of Beacon street with Commonwealth avenue as those streets are now located. The location of the streets in question, where they cross one another as they now are, and as they were at the date of the instrument in question, together with the lines and dates of the various widenings, changes and extensions that have been made since 1876, are shown on a compilation plan filed in this case as 'Exhibit 2,' on which certain additional data have been placed by me. Coming from Essex street at the west, Commonwealth avenue, just before crossing Beacon street deflects slightly to the northward and continues on across Beacon street at a greater width than it had to the westward. Coming from the westward toward Commonwealth avenue, Beacon street is narrowed at its crossing with Commonwealth avenue, and continues on to the east at such narrower width. The center line of Beacon street east of Commonwealth avenue, and the center line of Beacon street west of Commonwealth avenue, are therefore parallel lines which, if protracted, will never intersect, the former lying southerly from the latter.

'It is argued on behalf of the various respondents that the lands belonging to the petitioner's predecessor in title, upon Commonwealth avenue between Essex street on the west and the junction of said avenue and Beacon street on the east, included all of their lands between Essex street on the west and the extreme easterly junction of the northerly side lines of Commonwealth avenue and Beacon street on the east, which would come at the point P on the compilation plan, and include a portion of the land of the petitioner. It is contended by the petitioner that the lands of his predecessor affected by said instrument, between Essex street on the west and the junction of Commonwealth avenue and Beacon street on the east, would be bounded easterly by the point where the side lines of those streets first intersect, which would be at point Y on the compilation plan, or at all events, not east of the intersection of the center lines of said streets. The intersection of the center lines of Beacon street and Commonwealth avenue, as they come together from the west, is at point C on the compilation plan. The intersection of the center lines of Beacon street and Commonwealth avenue, as they come together from the east, is at point D. The intersection of the center lines of Commonwealth avenue, as it comes from the west, with Beacon street, as it comes from the east, would be at point X.

'The restrictions in question apply to two classes of lands, one class being lands on the south side of the avenue within 400 feet of said junction. On the respondents' contention there would be no lands within this class. This seems to me conclusive as to the intention of the parties.

'Aside from this argument, however, and regarding the matter purely as one of arbitrary construction as to the meaning of the word 'junction,' lands lying between Essex street and the junction of Commonwealth avenue and Beacon street necessarily exclude the junction, if that he regarded as the space between the points of intersection of the side lines of the respective streets. The same thing is true if the junction be regarded as the intersection of the center lines of the respective streets. In either of these cases the lands of the present petitioner are not within the limits of the land affected by the restrictions, and it is not necessary to decide which of these two is the better construction of the word 'junction.' The argument of the respondents, that the land lying between Essex street on the west and the junction of Commonwealth avenue and Beacon street on the east extends to the most easterly intersection of any of the lines of those streets, includes within the limits of such land the other or westerly, intersection of the side lines of the two streets, the point of intersection of the center lines, and the entire space where the streets cross one another, and is not tenable; for, to paraphrase Codman v. Evans, if the land lies between Essex street and the junction, the junction must be external to the land.

'I rule that the restrictions imposed by the Adams agreement of 1890 do not apply to any of the land of the petitioner covered by his application in this case.

'Decree accordingly.'

(Image Omitted)

COUNSEL

Felix Rackemann an Frank Brewster, for petitioner.

Robert G. Dodge and Charles W. Blood, for respondents.

OPINION

BRALEY, J.

By St 1904, c. 448, § 8, in proceedings for registration of title a party who is aggrieved by a finding of fact can have a jury trial on appeal to the superior court. After an appeal has been duly claimed of record, the issues are to be framed by the land court, and copies of all material papers must be filed in the appellate court by the appellant within the time prescribed by the statute. Luce v. Parsons, 192 Mass. 8, 77 N.E. 1032; Foss v. Atkins, 193 Mass. 486, 487, 79 N.E. 763; Dunbar v. Kronmuller, 198 Mass. 521, 85 N.E. 106. By St. 1905, c. 288, the judge is also required within 30 days after entry of the appeal to transmit a full report of his decision so far as material to the questions involved, which by analogy to an auditor's report is made prima facie evidence. But if after a decree for registration has been ordered an appeal lies for a jury trial on the facts, there is no record to transmit until the issues have been framed and allowed. If the appeal is perfected, the superior court may modify or enlarge the issues sent...