201 Mass. 97 | Mass. | 1909
The deed, which gives rise to the present controversy, was executed in 1818 by David Greenough to John Lemist. It granted “ a certain lot of land, with the store thereon
The city of Boston is the successor in title of Lemist, and the same description of the right of passage occurs in all the deeds, through which its chain of title is traced, except that on January 20, 1898, the Boston Rapid Transit Commission, acting under authority conferred by St. 1894, c. 548, and acts in amendment thereof, took in fee the premises “ together with the privilege appurtenant to said land of using the passageway in the adjoining store to reach the chambers of the adjoining building ” and in deed from the Fifty Associates to the city of Boston dated July 20,1899, of the premises owned by the respondent is the recital “ with a privilege, so far as the same now exists, in the passage of the adjoining store for the purpose of passing and l repassing to the chambers of the store hereby conveyed.” The buildings upon the land of the petitioners are the same which were there at the time of the deeds from the New Cornhill Cor
The question presented is whether under the language which defined the easement in the deed to Lemist and the subsequent deeds, through which the respondent city traces its title, the right of passage therein described became appurtenant to the new building or whether it was extinguished with the destruction of the old store. “ Every deed should be so construed as to give effect to the intent of the parties, unless inconsistent with some rule of law or repugnant to the terms of the grant.” Simonds v. Simonds, 199 Mass. 552. In this instance the intention of the parties can be discovered only by examination of the words employed to express their meaning as applied to the subject matter. In ascertaining the correct construction of the language used (as was said by Lord Wensleydale), “ the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordidinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.” Grey v. Pearson, 6 H. L. Cas. 61, at 106.
It is significant that the deed, by which the right asserted by the city of Boston was created, does not rely upon the principle that a conveyance of land carries with it all structures affixed to land without particularization, but it identifies the structure upon the land as “ the store thereon standing,” and
It has frequently been decided that a right of way through a building, in the absence of plain words to the contrary, incum
This petition is brought under the provisions of R L. c. 182, §§ 11-14, both inclusive, and St. 1904, c. 448. The Land Court correctly ruled that the question of what easement was acquired under the taking of the city of Boston is not open in this proceeding. The decree in favor of the petitioners should therefore recognize that the effect of the taking is left open.
Decree for the petitioners.