Downey v. Hood, 203 Mass. 4

Downey v. Hood

203 Mass. 4 | Mass. | 1909

Braley, J.

The executors of the will of Rebecca Weld divided a tract of land belonging to her estate into house lots, and prepared a plan designating them by numbers, with three proposed streets on which forty-four of the lots abutted. The remaining six lots fronted the highway on the south, with which the streets connected and which afforded the only means of access to the public ways. They then conveyed .the premises to one Weed, describing them as “ shown on the plan... to be recorded herewith.” The deed and plan having been recorded, the subsequent deeds given by him, under which the parties derive their *10respective titles, described the estate conveyed by reference to the plan, with the number of the lot and name of the street on which it is bounded. It is evident upon an inspection of a copy of the plan and from the configuration of the land, that while they are designated by different names for convenience of location or possibly to attract buyers, the streets formed a continuous passageway, so laid out that each end took its departure from the highway into which both ends also opened, affording to all abutters equal facilities of entrance and exit to their estates. The plan formed a part of the contract of sale, not only for the purpose of ascertaining the lot conveyed, but including the description of the appurtenant rights which were intended to attach. These particulars were incorporated by reference in each deed, as if they had been recited at length. Boston Water Power Co. v. Boston, 127 Mass. 374. Lipsky v. Heller, 199 Mass. 310. By this reference, and by the boundaries, the defendant, who claims under the common grantor by purchase, is estopped to deny the existence of the street for the entire distance. Thomas v. Poole, 7 Gray, 83. Rodgers v. Parker, 9 Gray, 445. Fox v. Union Sugar Refinery, 109 Mass. 292. Drew v. Wiswall, 183 Mass. 554. Lipsky v. Heller, 199 Mass. 310.

In Regan v. Boston Gas Light Co. 137 Mass. 37, and Pearson v. Allen, 151 Mass. 79, a large tract of land having been laid out with a series of streets remote from the plaintiff’s lot, it was held, that, although shown by the recorded plan, they might be closed' if the private ways adjoining the lot and leading to the highways with which they connected were left unobstructed. But the present plaintiffs, even if the easement were treated as divisible into three separate streets, are entitled to have them kept open, because going in either direction they afford the only communication with the highway. It would not curtail their rights, whether they chose to use one end or the other as providing the more convenient mode of travel. Accordingly the right conveyed cannot be limited as the defendant contends, without attempting to make a restrictive distinction between the use of the entrances or exits, which we do not find the original grantors intended.

Nor was the easement as thus defined extinguished by the taking of a portion of the way in width at the point where it *11came within the limits prescribed by the decree in the proceedings for the changes in the location of the railroad. Its extinguishment would have followed as to the part taken, if the entire space had been appropriated. Central Wharf v. India Wharf, 128 Mass. 567. While the plaintiffs, or their predecessors in title, presumably were compensated by the assessment of damages under R. L. c. Ill, § 158, for whatever injury may have been caused to their property, they still retained their rights unimpaired in the remainder of the way, as it was left after the completion of the work.

The fences which the defendant has erected and maintained, and the building which it proposes to erect on a site including a large portion of the way, constitute an injustifiable interference with the plaintiffs’ easement. O’Brien v. Murphy, 189 Mass. 353, 356. Generally, the appropriate remedy to redress an injury already inflicted, and to prevent the imposition of a greater and more permanent wrong, would be an injunction directing the defendant to remove the fences and enjoining it from erecting the proposed building over the way, while retaining the bill for the assessment of such money damages as may have been suffered. Harrington v. McCarthy, 169 Mass. 492. O’Brien v. Murphy, 189 Mass. 353. Stewart v. Joyce, 201 Mass. 301. It having been found by the trial court that because of its diminished width there was no reasonable probability that the way as to these portions at least would be accepted as a public street, and the defendant having offered to build on its own land a way in substitution, which the presiding judge deemed would be more convenient, he denied the injunction, and ordered, that if within the time fixed in the decree the plaintiffs did not accept the defendant’s offer, they were to be remitted to an action at law for damages.

The defendant, having failed to justify the encroachment, urges that the equities between the parties are such that an injunction should not be ordered under the decisions of Brande v. Grace, 154 Mass. 210, and Lynch v. Union Institution for Savings, 159 Mass. 306. In these cases, although a continuous trespass was clearly established, restoration of the premises was not ordered, as the lease under which the plaintiffs held title would shortly expire. To subject the defendant to the expense of removal, *12when upon expiration of the lease the additions to the premises could at once be made, would have caused an unnecessary destruction of property so disproportionate that the remedy was held to be confined to compensation in damages. A similar exception was made in Levi v. Worcester Consolidated Street Railway, 193 Mass. 116. The owner of the servient estate sold the company the fee in the land, and the construction of the road had been begun destroying the plaintiff’s right of way. It was held that, the defendant having agreed to purchase and provide an equally convenient way in substitution, to require it to abandon its location by restoring the way would be inequitable.

But the conditions upon which the result in those cases is made to depend, are not found in the case at bar. The defendant had constructive notice by the recorded plan of the location and existence of the street, as well as by the description in the deed when it purchased the first parcel of land. It has not been misled by the conduct of the plaintiffs, and the work of construction has not been begun. For its own convenience, or for the profitable improvement of its property, the defendant cannot compel them to relinquish any part of their respective homesteads at a valuation to be fixed by the assessment of damages. The plaintiffs have acted promptly in the assertion and enforcement of their rights, and should be protected in the lawful enjoyment of.their property, which without their consent cannot be replaced by payment of a money indemnity or by the substitution of another easement at the defendant’s option. Tucker v. Howard, 128 Mass. 361. Lynch v. Union Institution for Savings, 158 Mass. 394; S. C. 159 Mass. 306, 308. O'Brien v. Goodrich, 177 Mass. 32. Providence, Fall River & Newport Steamboat Co. v. Fall River, 183 Mass. 535, 543. Daly v. Foss, 199 Mass. 104, 109.

The decree of the Superior Court must be reversed, and in each case a decree with costs is to be entered awarding an injunction commanding the removal of the fences, and enjoining the erection of the proposed building or of any other obstruction upon the way, while retaining the bill for the assessment of damages already suffered. Cobb v. Massachusetts Chemical Co. 179 Mass. 423.

Ordered accordingly.