261 Mass. 47 | Mass. | 1927
This is a suit in equity whereby the plaintiff seeks to have the defendants enjoined from passing over bis premises and for other relief. The dispute between the parties is whether the defendants have rights of way over a strip of land five feet in width on the extreme westerly side, and over a strip of land three feet in width on the extreme easterly side, of the lot owned by the plaintiff. The ease was sent to a master and, no exceptions having been taken, by consent his report was confirmed. The relevant facts thus disclosed are that a considerable tract of land in Everett known as County Park was registered as to title. Later a separate plan of a part of this larger tract called Section D was filed and a decree entered by the Land Court imposing restrictions thereon. Finally, on March 13, 1901, a. decree was entered by the Land Court subdividing the land in Section D into smaller lots, retaining the restrictions and creating rights of way in passageways, all as shown on a plan filed March 30, 1901, entitled, “Re-Sub-division of ‘Lots 91-92-94r-95’ Section ‘D’ Everett.” The decree of the Land Court extended on this plan authorized the issuance of certificates of title for the lots to those entitled thereto, “subject to and with the benefit of restrictions and rights of way referred to or appearing hereon.” This plan, hereafter called the plan, with decree of the Land Court thereon was filed with the proper land registration office. No contention is made as to the validity of this plan and its accompanying decree. Referring to this plan, the plaintiff is the
As matter of construction and interpretation of the plan and the decree of the Land Court thereon, made a matter of public record, we think that the plaintiff’s lot was made subject to the two rights of passage already described. His certificate of title in terms made the lot subject “to the right of way ” shown on the plan. The plan was thus incorporated in the certificate of title as much as if attached thereto. The principle of construction governing the interpretation of deeds is that where mention is made of an easement as an encumbrance or as an appurtenance of the land conveyed and reference is made in the deed to a plan, the plan must be considered as a part of the deed, so far as is necessary to aid in description and identification of the easement. That principle respecting the construction of deeds of conveyance in common form is stated with ample citation of authorities in Lagorio v. Lewenberg, 226 Mass. 464,466, and in Downey v. H. P. Hood & Sons, 203 Mass. 4,10. It governs in the case at bar.
The creation of the Land Court and the enactment of provisions for registration of land and the issuance of certificates of title thereto have not affected that principle of construction so far as pertinent to the interpretation of certificates of title and decrees of the Land Court. This principle is as applicable to certificates of title issued under G. L. c. 185, as to deeds of conveyance at common law.
The circumstance that in the plaintiff’s certificate of title
We consider next the interpretation of the plan and its accompanying decree of March 13, 1901, as to the creation of rights of way for the benefit of the lots of the defendant apart from any facts found by the master to have arisen subsequently. When the decree of the Land Court of March 13, 1901, was extended on the plan and the plan and decree were made a matter of public record, some easement of passage over the passageways shown on the plan on the lot now owned by the plaintiff became appurtenant to lots 91B and 92B now owned by the defendants. The reason for this is that on the plan lots 91B and 92B were back lots not abutting on any public way. ' Lot 91B was utterly inaccessible unless having easement of egress and ingress over some passageway shown on the plan. There are shown on the plan three passageways reaching to lot 92B, the two over the plaintiff’s lot and one other not here in issue. Unless one of these is appurtenant to it, that lot also would be utterly inaccessible. Giving due weight to the principles underlying the implication of the right of way of necessity over land of another, Orpin v. Morrison, 230 Mass. 529, 533, and to the situation of the several lots as shown on the plan, we think it plain as matter of construction of the plan and accompanying decree that rights of passage over some of the ways “referred to or appearing” on the plan were created as appurtenant to lots 91B and 92B. The plan itself discloses no preference among these rights of way. They all appear to be on the same footing. The one shown on the westerly side of the plaintiff’s lot, five feet in width, considered by itself alone, touches lot 91B only at a point; but it is contiguous throughout its length to another similar passageway on the adjacent lot to the west of that of the plaintiff, which on its northerly end abuts on lot 91B. The indication of the plan is that these two strips of land, each
The plan here involved is not of a large tract with numerous streets laid out upon it. It shows only nine lots, the smallest containing but 747 square feet of land, and no one of them of great size. Manifestly the plan with its passageways is designed to have special reference to this restricted area. There is no room for the operation of the principle as to the presumed intention of the parties with respect to rights in numerous streets and ways upon a plan of a tract of considerable size. Cases like Regan v. Boston Gas Light Co. 137 Mass. 37, 42, Attorney General v. Whitney, 137 Mass. 450, and Stevens v. Young, 233 Mass. 304, 309, are not pertinent to the facts displayed on this record.
The issuance of certificates of title in conformity to the plan and its accompanying decree had the effect of creating the rights involved in this litigation by express grant, to use the terminology of real estate law before-the adoption of the system of registration of titles now set forth in G. L. c. 185;
We pass now to the consideration of the certificate of title under which the defendants claim. That certificate makes no mention of easements of passage over the plaintiff’s land, and contains no reference to the plan on which the passageways are shown. It is a certificate of title pure and simple, containing detailed description of the land together with reference to another plan showing restrictions not now pertinent. Here again we think that the principles of the common law with respect to the interpretation and construction of deeds governs the interpretation and construction of certificates of titles under G. L. c. 185. It has long been the law touching deeds that if the owner grants an estate to which a right of way over land of a third person is appurtenant, that right of way passes as an incident although no mention is made of it and although the grant is not expressed to be with the easement or appurtenance. Kent v. Waite, 10 Pick. 138, 141. Atkins v. Bordman, 2 Met. 457, 464. Oliver v. Dickinson, 100 Mass. 114, 117. Whatever easement of travel, therefore, was appurtenant to the defendants’ land under the registration records shown in its chain of title under G. L. c. 185, passed to them under their certificate of title although no reference thereto is made in their certificate of title. The requirement of G. L. c. .185, § 47, as to the coiitents of the decree of the Land Court and of the several sections concerning the certificate of title, contains no reference to easements appurtenant to the land. It is only easements to which the registered land is subject which must be set out in the decree and certificate of title. However desirable it may be that the decree and the certificate of title should disclose the whole state of the title, including all easements appurtenant, that does not appear to be the mandate of the Legislature as shown in G. L. c. 185. Of
The facts found by the master do not make out abandonment by the defendants of their easements as matter of law. At most they show simple nonuser. Mere nonuser of an easement created by grant does not show abandonment. Gloucester Water Supply Co. v. Gloucester, 179 Mass. 365, 379. Butterfield v. Reed, 160 Mass. 361, 369. New England Structural Co. v. Everett Distilling Co. 189 Mass. 145, 153, 154. There are no acts of the defendants or their predecessors in title manifesting a design to relinquish their rights of way. Ignorance or disregard of their easements is not an intentional renouncement and surrender of a known right. In order to establish abandonment of easements such as these there must be "acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence. Willets v. Langhaar, 212 Mass. 573, 575.” Parsons v. New York, New Haven & Hartford Railroad, 216 Mass. 269, 272. Such acts were present in Pope v. Devereux, 5 Gray, 409, Chandler v. Jamaica Pond Aqueduct Corp. 125 Mass. 544, 549, and Porter v. International Bridge Co. 200 N. Y. 234. They are absent in the case at bar. Whitney v. Cheshire Railroad, 210 Mass. 263, 269. Boston & Albany Railroad v. Reardon, 226 Mass. 286, 292. Brookline v. Whidden, 229 Mass. 485, 491, 492. Jamaica Pond Aqueduct Corp. v. Chandler, 121 Mass. 3. Barnes v. Lloyd, 112 Mass. 224, 231.
No argument has been urged against the form of the decree whereby not only is the plaintiff’s bill dismissed but also the defendants are affirmatively declared to have a right of way over the passageways shown on the plan. Apparently the plaintiff has assumed that the answer of the defendants was sufficient to entitle them to this relief under Equity Rule 6 (1926). See, also, Union Trust Co. v. Reed, 213 Mass. 199, 202, and cases there cited.' We make the same assumption without passing upon the point. By not arguing, the plaintiff must be taken to have waived whatever, if anything, there may be in the point.
The final decree goes beyond the possible issues involved in the present litigation in that it affirms the rights of way of the defendants “over the respective passageways shown on the plan . . . leading to lots 91B and 92B on said plan.” Only the passageways over the land of the plaintiff are before the court in this suit. The final decree must be modified by adding at the end after the word “plan” the words “over the lot of the plaintiff numbered 92A on said plan.” As thus modified it is affirmed.
Ordered accordingly,