Brown v. Levin, 258 Mass. 544

Brown v. Levin

258 Mass. 544 | Mass. | 1927

Braley, J.

This is a petition under G. L. c. 185, to register title in fee simple to land as therein described situated in the city of Boston. The judge found and ruled that the *546respondents had appurtenant easements of way over the land, and the petitioner appealed. It is stated in his decision that the way in question was the subject of litigation in Langmaid v. Higgins, 129 Mass. 353, where a plan is printed showing a parcel of land bounded southerly by Howard Street, easterly by Stoddard Street, northerly by Court Street, and westerly by land of one Spooner. A passageway is shown about equally distant from Court Street and Howard Street running through the land from Stoddard Street to the property of Spooner. It is found that there were buildings fronting on Court Street, and buildings fronting on Howard Street, between which the passageway was located. The city, however, widened Court Street, taking in fee the buildings fronting on Court Street, and on the Stoddard Street end of the passageway, as well as the passageway, except a “sliver” of the northerly portion of the remainder. The result was that of the old passageway only a strip between the lots on Howard Street and the new line of Court Street was left. It measured about seventy-two and one half feet in length and three and seventy-three one-hundredths feet in width at the westerly end, the level of which in places is two and one half feet above the grade of the sidewalk, which the city built along the southerly side of the taking on Court Street. In the deed from John Amory, conveying the property to John Hubbard in 1822, the land was bounded northerly on land of the grantor, “laid out as a passageway of five feet leading from the rear of said Amory’s Cambridge Street estates to . . . Stoddard’s Lane and measuring on said passageway as the fence now stands about eighty-nine feet six inches.” And there was also conveyed “a right in common with said Amory and his assigns of passing and repassing through and over the said passageway of five feet from said Stoddard’s Lane to the distance of eighty-nine feet six inches from said Lane and no further.” The terminus accordingly was the end of the line as measured. But Hubbard extended the way to the Spooner land. Langmaid v. Higgins, supra. It follows that Amory retained the fee in the way subject to the easement, and the petitioner’s ownership in fee of the strip was not disputed. It also was *547unquestioned that, at the time of the taking, the passageway was appurtenant to the respective estates of the respondents for passage on foot and with teams to and from Stoddard Street, formerly Stoddard Lane. The question is, whether the easement, having been strictly limited to this purpose, was extinguished, as the petitioner contends, by the scope and effect of the taking. But the whole passageway was not taken, and the remainder is found to afford access, even if not very convenient, from Stoddard Street to land which was formerly the rear of the respondents’ lands. We find no evidence of any intention by the owners of the dominant estates to relinquish their rights, and the strip remained subject to the easements. New England Structural Co. v. Everett Distilling Co. 189 Mass. 145. Downey v. H. P. Hood & Sons, 203 Mass. 4. The case of Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 202 Mass. 585, 596; S. C. 209 Mass. 298; 215 Mass. 381, on which the petitioner places much reliance, is not in conflict. In that case land over which there was a private right of way was taken by metes and bounds for a public easement, and it was held that the taking extinguished the way.

The record reads that the respondents, who have not appealed, contended that they had direct access to and from Court Street as widened along the entire length of the strip, which would give them a frontage on that street. But, as stated in the decision, the difference in the use of the petitioner’s land, if the respondents’ estates are given a frontage on Court Street, and its use as “a back alley to and from Stoddard Street, is obvious. The frontage would not only greatly increase the burden, but would be a use for an entirely different purpose from that for which the easement was created, and would amount to the creation of a new and burdensome servitude.” McLaughlin v. Cecconi, 141 Mass. 252. The ruling, “that the respondents’ appurtenant easements are rights of way over the petitioner’s land in the direction, and from the direction, of the former location of Stoddard Street,” was right. Langmaid v. Higgins, supra.

Order for decree affirmed.