Boland v. St. John's Schools, 163 Mass. 229

Boland v. St. John's Schools

163 Mass. 229 | Mass. | 1895

Morton, J.

The premises conveyed by Tobias Boland to Daniel Daley on September 11, 1873, were bounded in part as follows: “ thence running north sixty feet, more or less, by land of John P. Sullivan to a driveway, thence easterly on said drive way one hundred and fifty-four feet, more or less, to land of said Dunn.” The driveway thus referred to was manifestly the one running east and west in the rear of the long block. No other answers to the distance. The deed also contained a reservation referring to this driveway, and “ Reserving that the said driveway between said houses as now laid out shall remain open and common to all parties having right to enter thereon.” It would seem, therefore, that Daley took to the centre of the driveway in fee with a right of way over the other half, the half belonging to him being subject to a similar right of way on the part of all parties having the right to enter upon the driveway. Fisher v. Smith, 9 Gray, 441. Boston v. Richardson, 13 Allen, 146, 153, 154. White v. Godfrey, 97 Mass. 472, 474. Stark v. Coffin, 105 Mass. 328, 330. But if this were not so, inasmuch as it appears that this driveway and the passageways at the east and west ends of the long block were laid out by Tobias Boland *237when he built the long block and the other buildings in 1868, and were intended by him, as the report finds, as passageways or driveways to and from Temple Street, and were in actual use by owners, tenants, and others having occasion to pass and re-pass at the date of Daley’s deed, we think that there passed as appurtenant to the premises conveyed to Daley an implied right to use them, and that this right appertained to every portion of the premises so conveyed. Lefavour v. McNulty, 158 Mass. 413. Regan v. Boston Gas Light Co. 137 Mass. 37. Goss v. Calhane, 113 Mass. 423. Fox v. Union Sugar Refinery, 109 Mass. 292. O'Linda v. Lothrop, 21 Pick. 292. It follows then that the plaintiff has a right of way over the driveway and the passageways, unless it has been extinguished by something which occurred when the Daley deed was given or has taken place since.

It appears that at the time when Daley took his deed he gave back to Tobias Boland a mortgage which contained the same description and reservation as the deed. This mortgage was foreclosed in 1877 by the plaintiff, acting as agent for and on behalf of Tobias Boland, who made to the plaintiff a mortgagee’s deed under the power of sale contained in the mortgage of the entire premises described in the Daley deed, including those now belonging to the plaintiff. Subsequent to this the plaintiff, by direction of Tobias Boland, conveyed to John A. Boland a portion of the Daley premises, and to himself, the said Tobias, another portion. There was thus left in the plaintiff the premises now owned by him, and which have never been conveyed to him by any other deed than the one made to him by Tobias Boland as mortgagee under the Daley mortgage. Subsequent to the Daley deed, and prior to the foreclosure of the mortgage, Tobias Boland conveyed to one O’Keefe the long block aforesaid. A part of the description contained in said deed is as follows: “ thence running south fifty-one feet, more or less, to a driveway running in rear of said lot to be conveyed; thence turning by said driveway east one hundred and twenty-one feet, more or less, to a driveway, . . . reserving hereby all rights of passage as now laid out in the driveways and passageways connected with said premises, and the same are never to be closed or obstructed while said premises remain as now laid out, except the parties now or hereafter owning the surround*238ing premises mutually agree to alter and rearrange the same.” The driveway referred to is the same as in the Daley deed, and it would seem that under this description the grantee, as in the Daley deed, took to the centre of the driveway and passageways, with a right of way over the remaining half, and subject to a similar right on the part of others abutting on the way over the half belonging to him.

The defendants contend that the plaintiff stands in the same position' which he would have occupied if the title to the Daley premises had actually vested in Tobias Boland under the foreclosure proceedings, and a deed had then been made by Tobias to the plaintiff of the premises which he now owns. And they insist that in that event the plaintiff would have taken subject to the reservation contained in the O’Keefe deed, and that under that reservation they have the right to close up the passageway and driveway as they have done, because they now own all the surrounding premises.

We do not think that this contention can avail the defendants. The reservation in the O’Keefe deed could not diminish any rights which were appurtenant to the Daley premises at the time of the execution of the deed to O’Keefe; and, as we have already seen, a right of way over the driveway and passageways was appurtenant to every part of the Daley premises. If, therefore, the title to the Daley premises had vested under the foreclosure proceedings directly in Tobias, and he had thereupon conveyed to the plaintiff the premises now belonging to him, there would have passed as appurtenant to them a right of way over the passageways and driveway. The title of Tobias would have been acquired under the mortgage, and he would have taken the premises with the same rights and subject to the same easements to which they were entitled and subject when Daley held them. This would be equally true whether Daley and O’Keefe took to the centre or the sides of the driveway.

But, further, we think that the Daley premises, and every part of them, fairly may be included in the description of “ surrounding premises ” contained in the reservation in the O’Keefe deed, and that the defendants therefore, as owners of the O’Keefe premises, had no right, as against the plaintiff, to close up the driveway and passageway without obtaining his consent, which they have not done.

*239We doubt whether the foreclosure proceedings are to be regarded as having vested the title to the plaintiff’s premises in Tobias Boland. It is true that the plaintiff acted as the agent of his father in foreclosing the mortgage. But it was understood from the first that these premises were to be his.' And he derived his title to them, not from his father directly, but through his father as mortgagee, and held them as his own all the time.

The remaining question is whether the plaintiff is entitled to a removal of the obstructions, and we are of opinion that he is. The defendant St. John’s Schools and the original defendant O’Reilly proceeded in plain violation of the plaintiff’s rights. The first fences that were built obstructed a part of the west passageway and of the driveway in the rear of the long block. Thereupon the plaintiff brought this bill for an injunction, and for damages. During its pendency the defendants erected another fence which wholly obstructed the west passageway and the westerly portion of the driveway.

The report expressly finds that no loches are attributable to the plaintiff in bringing this suit, or in asserting his rights. It also finds that the “ fence can be easily removed, and without great or disproportionate injury and loss to the defendants’ property,” and that “ it is the obvious intention of the defendants to prevent the plaintiff from using said west passageway as originally located, and to appropriate the same to the uses and purposes of the St. John’s Schools, to the permanent exclusion of the plaintiff therefrom for use as a passageway from his premises to Temple Street.” The case comes therefore clearly within the principles laid down by this court in Lynch v. Union Institution for Savings, 159 Mass. 306, 308, as governing the issue of mandatory injunctions. See also same case, 158 Mass. 394; Starkie v. Richmond, 155 Mass. 188; Attorney General v. Algonquin Club, 153 Mass. 447, 454; Tucker v. Howard, 128 Mass. 361; Linzee v. Mixer, 101 Mass. 512.

Perpetual injunction to issue for removal of obstructions and nominal damages to be assessed.