265 Mass. 571 | Mass. | 1929
In this suit in equity the plaintiffs alleged that the parties were the owners of certain lots on Oxford Place, in Boston; that this passageway was to be kept open for the common benefit of the landowners; that the defendant, in constructing its building, encroached upon the surface and subsoil of Oxford Place. The plaintiffs prayed that the defendant be ordered to remove all obstructions from the surface and subsoil. The case went to a master. His report was confirmed by an interlocutory decree which
Briefly stated, the facts as found by the master were that Oxford Place is a private way laid out in 1842 by one Johnson, the common grantor, from whom, through mesne conveyances, the plaintiffs and the defendant derive title. The plaintiffs own the lots shown on the plan as I and J. The defendant’s lots are S, T, U,V,W, and X, on the opposite side of the way from those of the plaintiffs. Johnson proceeded to develop the property. He laid out the fifteen foot court in the center of the tract with a passageway leading to Harrison Avenue, which passageway and court are now Oxford Place.
The first references to easements appearing in the chain of title are in the deeds from Hastings and Minot to Johnson in 1842, which refer to easements, privileges, and appurtenances thereto belonging. Prior to April 28, 1843, Johnson made various conveyances referring to the fifteen foot court. In these conveyances, the master found, Johnson “conveyed no express right of passing over nor of drainage under said Oxford Place; that such rights as were granted were subject to existing mortgages and the danger of foreclosure, and were in general undefined terms only.” On April 28, 1843, Johnson made an agreement with the mortgagees, containing covenants and grants by all the parties to the effect that Oxford Place as laid out should throughout its extent forever remain open and unencumbered for the use in common of the owners and occupants of real estate abutting thereon, “for the purposes of passing over and of draining under the same.” These easements were granted by Johnson “to be forever enjoyed by them as appurtenant to and according to their several and respective titles as
The mortgages on the premises when this agreement was made were discharged as early as July 1, 1843. On that date Johnson mortgaged lots I, J and K to Jonathan Minot by separate mortgages referring to Oxford Place. Each lot was said to be free of all encumbrances, was bounded “by Oxford Place” and was conveyed “with all rights, easements, privileges and appurtenances thereto belonging as now had used and enjoyed therewith.” It was from the foreclosure of the mortgages on lots I and J that, by mesne conveyances, the plaintiffs acquired lots I and J.
Johnson, by deeds given in 1843 and 1844, some of which covered the properties later acquired by the defendant, bounded each lot “by Oxford Place”; each deed in reference to rights, easements, privileges and appurtenances, contained the words “as now had used and enjoyed therewith.” The deed of lot W, dated July 21, 1843, recites, in addition, "including a right and privilege in common with others thereto legally entitled in said Oxford Place of passing and repassing in, upon and over the same.” The plan of the lots referred to was recorded July 25, 1843. The master found as a fact that, although the abutters’ lots were bounded “by Oxford Place” and with metes and bounds of exact measurements, nevertheless, it was Johnson’s intent to pass to his several grantees the fee to the center of the way, subject to the common easement of passage.
About 1920, the defendant began the construction of a building on Oxford Place, covering all of its lots. The foundation as completed consists of a concrete wall through which run seven iron columns each resting on a concrete footing. At and below the surface soil the wall goes down twenty-two feet and projects five inches into the subsoil of the way. The cast iron supports at the base of the columns extend into the subsoil for several inches. The concrete footings, with their base twenty-five feet below the surface of the way, project about three feet. It was found as a fact that the foundation of the defendant’s building does not interfere with the present system of drainage in Oxford
One of the plaintiffs’ contentions is that, as the defendant’s land was bounded “by Oxford Place,” it did not own to the middle of the way. In answer to this the defendant contends that this question is not open; that, as the plaintiffs did not appeal from the interlocutory decree, only such matters are open on the appeal from the final decree as may erroneously affect the final decree. Reno v. Cotter, 236 Mass. 556, 560. Galkowski v. McManus, 257 Mass. 509, 510, 511. Ledoux v. Lariviere, 261 Mass. 242, 244. On the facts found by the master, the question is, Did the defendant interfere with the property of the plaintiffs in such a manner as to entitle them to a mandatory injunction? The exception of the plaintiffs was to the refusal to find that “on the enumerated facts with all the evidence, it was not the intention of Johnson to convey a fee to the middle of Oxford Place.” In the amended report the master states that the plaintiffs’ exception was to his refusal to make this finding “on the facts found.” We, therefore, are of opinion that this question is not open.
Even if this question were open, the plaintiffs to maintain their suit in equity must rely on the strength of their own title; they cannot rely on any weakness of the defendant’s title. They must show that their property rights have been interfered with. In the absence of right or title in the premises where the defendant’s acts were done, the plaintiffs cannot have an injunction against acts which do not amount to a nuisance that affects the plaintiffs’ land, even though the acts of the defendant are contrary to law. Brown v. Pinkham, 18 Pick. 172, 174. Jenks v. Williams, 115 Mass. 217. Frazee v. Nelson, 179 Mass. 456, 459. See Barnstable v. Thacker, 3 Met. 239; Litchfield v. Ferguson, 141 Mass. 97. The plaintiffs did not own the fee in the entire width of Oxford Place. The parties derive their title under conveyances which do not refer in terms to the fee in Oxford Place. Both the plaintiffs’ and the defendant’s lots, by the deeds to their predecessors in title, are bounded “by said. Oxford Place.”
The master found that Johnson intended to pass, and did pass, the fee of Oxford Place to the various abutters thereon, except as to the lot X. If this finding is correct, the foundation of the defendant’s building which protrudes into the soil in front of lots S, T, U, V and W is in the defendant’s soil and does not infringe on the plaintiffs’ land. This finding of the master, that Johnson intended to convey, and did convey, the fee of Oxford Place, is based on the situation which existed relative to drainage, the language used in other contemporaneous deeds, the then state of the decisions, and the inutility of the fee in Johnson after the sale of the lots. The question was considered in Erickson v. Ames, 264 Mass. 436, with a full citation of authorities. We do not think a determination of this particular point is essential, as the plaintiffs do not show their rights were invaded, even if the fee to the center of the way remained in Johnson and did not pass by his deeds.
The plaintiffs’ right of passage over Oxford Place was not encroached upon by the defendant. At and above the surface soil the way was not interfered with, and its utility was not impaired. No use was made of the way inconsistent with the easement of passage. Healey v. Smith Carriage Co., ante, 203, 208, 209, and cases cited.
There was no interference with the easement of drainage belonging to the plaintiffs. The master found that their title came from the foreclosure of mortgages which conveyed “all . . . easements . . . thereto belonging os now had used and enjoyed therewith.” The easements granted by such language were limited to the specific use of the land as it was then used and enjoyed. Kendall v. Hardy, 208 Mass. 20. New York Central Railroad v. Ayer, 239 Mass. 70, 78, 79. There is nothing to show that the defendant’s building in
There was no “general easement.” Whatever easements were granted by the agreement of April 28, 1843, were lost by merger when the mortgages to .the Massachusetts Hospital Life Insurance Company, to Hastings, Minot and French, were discharged, no lots having been sold subsequent to the agreement and while the mortgages were in force. Rogers v. Powers, 204 Mass. 257. The deeds made by Johnson after the discharge of the mortgages referred to the new plan with terms relative to easements different from those used in the agreement with the mortgagees.
As the defendant has not interfered with any of the plaintiffs’ rights the decree dismissing the bill is affirmed with costs.
Ordered accordingly.
