279 Mass. 272 | Mass. | 1932
This is a bill in equity brought on January 19,1931, in which the plaintiff alleges, in brief, that she owns a parcel of land with a two-family house thereon on Circuit Avenue, in Newton Highlands, Massachusetts; that she has acquired title to a strip of lot 19 north of and adjoining lot 18 by reason of the continuous adverse use and occupation of the strip by herself and her predecessors in title for over twenty years. The plaintiff prays that the size of the strip and her rights in it may be established, and that the defendants be enjoined from interfering with her rights therein and required to restore the strip to its original condition. The defendants answered denying adverse continuous occupation and setting up lack of equity as a defence. The case was referred to a master who duly made his report. Certain objections were taken to the report by both plaintiff and defendants. By an interlocutory decree the plaintiff’s objections were overruled, and the defendants’ objections enumerated in the order for interlocutory decree were sustained. Except as modified the report was confirmed. A final decree was entered dismissing the bill with costs to the defendants. The case comes before this court on the appeal of the plaintiff from the interlocutory and final decrees.
The title to lot 18 came to the plaintiff by virtue of a deed from one Henry S. Brown, dated December 26, 1918, and recorded in said registry on December 31, 1918. This title came to the plaintiff through twenty-two successive record owners, some of the conveyances being at foreclosure sales. “In none of the conveyances is there any mention of or reference to a right to use any part of lot 19 in connection with the use of lot 18.” “Except for a Mr. Schafer, who owned lot 18 from February 3, 1912, to November 20, 1917, and lived there for about a year, and for . . . [the plaintiff], who bought the property for investment and who with her husband has lived there since October 29, 1929, none of the owners of lot 18 lived on the premises and all of them who testified owned the property for the purpose of reselling at a profit. The house had tenants in it continuously from 1900 . . . except for one month in 1912 and from December 1, 1925, to June 1, 1926. Generally both apartments were occupied. There was no evidence that any tenement [tenant?] held by a written lease except for one with a two-year lease from August 1,1926.”
The defendant John Paulini became the owner of the east portion of lots 19 and 20 on June 16, 1928, by a deed from Martha N. and Malcolm G. Blue, duly recorded. The defendant Emma P. Barbrick became the owner of the west portion of lots 19 and 20 on September 17, 1928, by similar recorded deed from the same grantors. The titles to lots 19 and 20 came to the defendants through
It is not contended that any adverse use of lot 19 was made before 1904. "The first occupant of the house on lot 18, who lived there till about March, 1904, the side porch being then in its original width and extending pretty close to the actual lot line, wheeled his ashes from the cellar door on the banking close beside the side porch and then around the front corner of the side porch onto the side front path and via that path to Circuit Avenue.” Sometime between March and July, 1904, the occupants (tenants at will) of the plaintiff’s house "trod out a path from Circuit Avenue to the foot of the back steps and to the cellar door. The path was a natural dirt path through the rough ground of lot 19 made by persons walking single file following the foot of the banking (that running northerly from . . . [the plaintiff’s] house) as they naturally would in order to get from Circuit Avenue to the back steps and cellar door. It was not at any time defined except by the baring and wearing down to a dish-shaped depression of the soil where the grass was trodden away. Therefore, it was not of a constant width. It remained clearly marked and in substantially the same location until about June, 1928.” “The above path was used for .all the usual purposes of a path to the back door, back yard and cellar door, including passage by the occupants of . . . [the] house and their guests and passage by various tradesmen . . . from July, 1904, to July 15, 1930.” An occupant of the house "commenced in 1904 to mow along the path including a short
The order for the entry of the final decree dismissing the bill with costs was required by law. The master makes no finding that any one of the twenty-two holders of title under whom the plaintiff claims, between 1904 and 1928, with the exception of one Schafer, who lived on lot 18 for about one year following 1912, was ever possessed in fact of lot 18 or knew that a portion of lot 19 was used by occupants of the house on lot 18 under a claim of right adverse to the title of the owners of lot 19 which, in the large, was “wild land.” He makes no finding that any one of said predecessors in title of the plaintiff ever expressly or impliedly authorized
With this view of the controlling principles of the law applicable to the facts of the case, we do not think it necessary to review the decision and rulings of the judge upon the objections taken by the plaintiff.
Decree affirmed with costs.