266 Mass. 132 | Mass. | 1929
In this petition for registration of land with an appurtenant right of way across the respondents’ land, there was a decree for the petitioner. After a rehearing on motion by the respondents, the decree was affirmed.
The judge of the Land Court found that the petitioner, who is the owner of land in Barnstable, on the northerly side of the State highway near the junction of Bumps River with the Chequaquet or Centerville River, asserts an appurtenant right of way across the respondents’ land between the highway and the river; that in 1835, Wilson Crosby owned a tract of land, including all of the land in question, extending from Bumps River for a considerable distance to the east; that the present highway at that time had not been laid out; that by deed dated in 1835, Wilson Crosby conveyed to one dagger a lot of land adjoining on the east the land now of the petitioner, together with the privilege of going to said land
The judge also found that on the Wilson Crosby land now owned by the respondents, lying between the dagger and Samuel Crosby lots and the Chequaquet or Centerville River, there was a shipyard; that dagger, a block maker, had a block shop on his lot, the blocks being used in rigging vessels built at the yard; that Samuel Crosby lived on his lot and carried on the shipyard until 1850; that the house of Wilson Crosby stood in the shipyard property; that while the shipyard was in operation there was free access from Samuel Crosby’s land, now belonging to the petitioner, to the yard and the river, but the way was not defined on the ground.
It was further found that over the Wilson Crosby land to the east of the land now owned by the respondents there was a way to a landing; that this way was not in good condition and but little used; that there was also another road, “used for wood,” which did not go to the river; that in 1856, Wilson Crosby sold to Enoch Lewis by warranty deed a portion of the land now of the respondents on which their house stands, and in 1872, sold to Cyrus Crosby, by warranty deed, land to the west of that owned by the respondents; that from 1850 to 1875 there was no appreciable amount of passing over the land between the Samuel Crosby and dagger lots and the river, although the occupants of both lots having occasion to go to the river did so cross land now of the respondents whenever convenient. •
It further was found that Enoch Lewis, in 1875, built a pier, on the house lot now of the respondents, to which boats were moored, and any one having occasion to go to this pier went across the land now owned by the respondents in the most convenient way; that there was a driveway to the east of where the respondents’ house now stands leading to the barn, and this way was generally used to go to the shore; that the Enoch Lewis lot was conveyed in 1910 to one Theo
It appeared that in April, 1910, Augustus D. Ayling, who then owned the petitioner’s land, conveyed it to one Merritt, who, in 1911, reconveyed to Ayling together with “a right of way to the river or shore over the land of heirs of Wilson Crosby deceased with teams or otherwise through gates and bars,” referring to the deed of Samuel Crosby. The respondents, who had acquired title to the Theodore land, purchased from Everett Lewis, in 1922, the one hundred-foot strip by a deed in which the grantor reserved the right to cross from the State highway to the river over a strip ten feet wide along the westerly side thereof, for himself and his assigns, “and for any other parties who may have a right to do so.” The filling done by Lewis in 1910 for access along the easterly side of the one hundred-foot strip did not make a practicable way. Although Lewis did not admit the existence of an easement, he knew about the earlier deeds and, as the judge of the Land Court found, “He was afraid, since all of the other Lewis property acquired from Wilson Crosby had been sold free from encumbrance and title both to the home lot now of the respondents to the east of the one hundred-foot strip, and to the Cyrus Crosby lot to the west had been registered free from easements, while he still held the only remaining and most available lot, that rights of way would be claimed there-over, and that he would get into litigation about it. He tried unsuccessfully to procure a release.” When the respondents acquired the one hundred-foot strip, one of them made a new way along its westerly side from the street to
It was also found that access from Samuel Crosby’s land to the river has always been over the respondents’ land; that prior to 1910 the way was not defined except while the driveway to the east was in existence; that the use of this way was given up by arrangement with the owners of the former dagger and Crosby lots and there was assigned instead a way across the easterly side of the one hundred-foot' lot; that this way was later changed by the respondents, with the assent of Everett Lewis and those claiming an easement under the Wilson Crosby deeds, to the present location on the westerly side of the one hundred-foot strip.
It thus appears that there was a right of way appurtenant to the petitioner’s land across the respondents’ land which, before the year 1910, was undefined; that after the use of the driveway had been given up and the road to the east built, it was used for a time and then abandoned, and the way now in question along the westerly side of the respondents’ lot was substituted. The questions involved were largely of facts, and the findings of the judge thereon must stand.
An undefined right of way by grant may be located by the parties, and a way once located may be changed by them. The location of the way in this manner was established on the findings of the judge. Bannon v. Angier, 2 Allen, 128. Byrne v. Savoie, 225 Mass. 338.
It is contended by the respondents that the right of way granted by the earlier deeds over the land of Wilson Crosby was to the east of the respondents’ land. The one hundred-foot strip did not belong to the heirs of Wilson Crosby. He had sold it during his lifetime. On this point the judge found that the deed from Ayling to Merritt did not constitute “at that time a selection by the predecessor of the petitioner of a way over land of the Wilson Crosby heirs to the east”; and there was no evidence according to the findings of fact that such a way was acquiesced in by the owners of that land, or that there has been any user as appurtenant to the petitioner’s land of any such way.
The registration of the land to the east of the one hundred-foot strip free from easements, whatever effect it had upon the rights of the petitioner so far as that particular lot was concerned, did not prevent the location of a way in the one hundred-foot strip at the demand of the owners of the dagger and Samuel Crosby lots, as found by the judge.
We find no error in the rulings made. All of the questions raised by the respondents were settled by the original decision and the later decision after a motion for a rehearing.
Order for decree affirmed.