216 Mass. 402 | Mass. | 1914
The passageway in question is twelve feet in width, less than one hundred feet in length, is closed at its northerly end, and at its southerly end it opens into another twelve-foot passageway that leads into Washington Street, in the Roxbury district of Boston. The Goldthwait Furniture Company, hereinafter called the defendant, owns the southerly lot on the east side of the way; and it is agreed for the purposes of this case that it has all the rights of the owner of the lot opposite.
The deeds under which the defendant claims convey lots bounding on the passageway; and, as these lots are opposite one another for a space of more than thirty-four feet, presumably it owns the fee in the way where the bridge is erected. There is nothing to indicate that when all the lots and the passageway laid out for their use were carved out of the estate of William C. Hunneman, as shown by the deeds and plan, it was intended to retain in the estate the naked title to the fee of the passageway. McKenzie v. Gleason, 184 Mass. 452, and cases cited. As owner of the land the defendant has a right to use it in any manner which is not inconsistent with the easement of a right of way in the plaintiff. Atkins v. Bordman, 2 Met. 457. Burnham v. Nevins, 144 Mass. 88. As was said in Crocker v. Cotting, 181 Mass. 146, 151, “Speaking generally, if a right of way is created, and-nothing
The extent of the plaintiff’s easement must be determined by the construction of the deed by which it was created and under which she claims title. The only right in the passageway granted expressly in the deed is that of using it with other persons entitled to use the same for a common passageway. The grant contains no provision that the way should be kept open to the sky for light, air, prospect or for any other purposes of convenience. Whether such additional easement arises by implication as appurtenant to the plaintiff’s lot depends upon the circumstances surrounding the estate and the parties at the time of the grant, as indicating the intention of the parties in creating the way; and the burden of proof is on the plaintiff. Lipsky v. Heller, 199 Mass. 310.
The trial judge found as a fact that: “There is nothing in the deed to indicate it was the intention of the owners that the way should be an open way, nor was the evidence of the circumstances surrounding the estate and the parties such that it could fairly be inferred that the intention of the parties was other than what was stated in the deed. ” Without reciting the evidence in detail, we are of opinion that the conclusion was fully warranted. The way was laid out for the purpose of selling those lots in order to settle the estate of Hunneman. It was a “blind” passageway, that is, closed at one end. It was not in a thickly settled district; the buildings on it when this controversy arose were two or three small wooden houses that were unfit for use and later were taken down; and apparently, when the way was created in 1856, the plaintiff’s lot was vacant. So far as appears the passageway was used only by those who collected ashes and garbage, and by the defendant, whose furniture wagons were backed in there. Further, at its closed end, opposite the plaintiff’s lot, the way was encroachedupon for a width varying from one and a half to more than four feet, by an old blacksmith shop on the plaintiff’s land; and for many years there has been no opening between her premises and the way. From these and the other circumstances existing at the time when the way was created, we cannot say that there exists by implication in favor of the plaintiff any easement in addition to that of
Decree affirmed.
The judge found that the defendants were the lessees of a building, the rear of which was directly opposite the building upon the premises owned by them.
