354 Mass. 675 | Mass. | 1968
The plaintiff Deacy seeks to enjoin the defendants from interfering with his alleged rights in a "common passageway,” later to be described, at the rear of a parcel of land owned by him at 32 Lawrence Street, Lawrence. The case was referred to a master whose report was confirmed by an interlocutory decree from which no appeal was taken. With the case in this posture the only question before us on appeal from the final decree is whether the findings, which are not inconsistent or plainly wrong, support the decree. Madigan v. McCann, 346 Mass. 62, 64, and cases cited.
We summarize the pertinent findings.
None of the deeds in the Deacy chain of title refers to any passageway other than the north-south passageway already described. However, there was in 1847 a short passageway
By successive deeds commencing in 1956, title to all of the land west of the north-south passageway and the 1932 YWCA building [3, 4, 5, 63, including title to the east-west passageway, was acquired by persons not parties to this litigation. The buildings were razed and the premises were enclosed for use as a parking lot. A three-foot opening in the fence at the east end of the parking lot permitted access on foot from the parking lot to the north-south passageway at the rear of Deacy's building. This opening [A3 was not directly on the line of the former east-west passageway.
In 1965, the YWCA purchased from the parking lot owners land [3, 4] extending from Valley Street to Common Street abutting on its 1932 parcel and on the north-south passageway for the purpose of adding an auditorium, gymnasium and swimming pool to the existing facilities. The defendant Charles Construction Co., Inc. was engaged to do the work of demolition and construction. The three-foot opening [A3 to the west from the north-south passageway has been closed. The construction work has required the relocation of a municipal sewer line serving the Deacy premises which since 1865 has generally followed the axes of the two passageways. The necessary excavations along the north-south passageway have caused some inconvenience
Title to the north-south passageway [X] is in the Lawrence Redevelopment Authority by virtue of a deed from the Essex Company dated December 10, 1959, which conveyed to the Authority, inter alla, “all of its right, title and interest, in a parcel of land, and especially in any and all passageways, alleyways and/or streets located within an area” which includes the block bounded by Valley, Lawrence, Common and Amesbury streets.
Based on the master’s findings the judge entered a decree defining the boundaries of the aggregation of land now owned by the YWCA and declaring that the lands so bounded were owned by the YWCA “free of any right of passage or other right or interest in the . . . [plaintiff] John Deacy.” The bill was otherwise dismissed with costs. The decree did not affect Deacy’s right to use the north-south passageway. It implicitly denied his claim of right to the use of the east-west passageway.
The findings support the decree and the decree was right.
It is not disputed that Deacy has rights of passage in the north-south passageway as it presently exists. Casella v. Sneierson, 325 Mass. 85, 88-89, 90, and cases cited.
The dispute centers on whether Deacy had rights of passage in the former east-west passageway. Deacy appears to contend that the two passageways were in fact one T-shaped passageway which was in existence at the time of the conveyance to Atkinson in 1851 and that the east-west passageway is subject to the same easements as the north-south passageway. The contention fails. The east-west passageway did not bound the property conveyed to Atkinson. It is not mentioned in the grant. It was a short passageway which at the time of the grant led to no public way to the west. It was not necessary for the enjoyment of the land conveyed to Atkinson. The rule is clear: “[A] grant by implication of an onerous servitude upon other land of the grantor, not necessary for the enjoyment of the land
It is unnecessary to discuss loches. The final decree is affirmed with costs.
So ordered.
The master appended to his report a sketch of the locus which with some modifications is reproduced with this opinion. Letters or numbers in brackets in the text refer to features marked on the sketch.