292 Mass. 321 | Mass. | 1935
The plaintiffs, who are husband and wife, bring this bill against the defendants, who are also husband and wife, to have declared null and void a certain “lease,” so called, of a driveway on land in which the plaintiffs claim to own the fee, to compel the removal of some fences and a “frame building” (referred to in the evidence as “chicken coops”) alleged to have been erected or used by the de
The premises of the plaintiffs and the premises now owned by the defendant Antonietta Cariddi are both located on the southerly side of West Main Street in North Adams. The driveway in question runs southerly from West Main Street between the houses on the respective premises, the plaintiffs’ house being east of the driveway and the defendants’ house west of the driveway. On September 12, 1853, Josiah Q. Robinson owned a large tract including the land now of the plaintiffs, and Samuel D. Groat owned a large tract including the land now of the defendant Antonietta. On that day Robinson “leased to the said Groat for the term of five hundred years all the right title and interest he had to the following described piece of land:— 'The land situated in the north village of Adams, and being part of my homestead place at the northwest corner thereof beginning on the south line of the road that leads from the north village of Adams to Williamstown at a stake and stones, thence south 10% degrees west sixty feet, said line being five feet due east from the northeast corner of the house which said Groat purchased of L. C. Thayer and known as the John Mallery House, thence east 10% degrees south ten feet, thence north 10% degrees east sixty feet, thence west 10% degrees north ten feet to the place of beginning for the express purpose and no other of a passageway or road to be used mutually for the benefit of said Robinson and said Groat their several heirs and assigns during said term and always to be kept open. And in consideration of said lease the said Groat agrees to and with said Robinson to keep up a proper and suitable fence
The principal questions in the case relate to the location on the ground of the way described in this lease and of the westerly boundary of the plaintiffs’ land, which the defendants contend does not extend to or under the way, and to the present rights, if any, of the parties in the way.
The master summarized a large amount of evidence in the body of his report and later incorporated that evidence by reference, together with other evidence, as a summary appended to his report at the request of the defendants, in accordance with Rule 90 of the Superior Court (1932). Evidence summarized under this rule, by the terms of the rule itself, can be considered only for the purpose of determining whether there is error- in law in the findings or rulings to which objection has been taken. The findings of the master, unless shown to be erroneous in law, have the same force as in other cases where the evidence is not reported.
The master found that the defendants’ present house is the same as the one described in the lease as "the John Mallery House,” and that it has .continued in the same location. Accordingly he found that the westerly line of the driveway described in the lease began at the road and ran south ten and one half degrees west sixty feet in a line which is five feet due east from the northeast corner of the defendants’ house. There was ample evidence as to the identity of the house. The master was not obliged to find that by "the northeast corner of the house” the parties meant the corner of a shed about four and one half or five feet wide, which by 1866 was attached, apparently as a lean-to, along a part of the easterly end of the house. This shed was not finished inside. It had a dirt floor and no cellar. There was evidence that the east side of the house covered by the shed was clapboarded like the rest of the house. Even if the master found that the shed had been built by 1853, which he does not state, in determining what corner was referred to in the lease, he could have given credence to evidence that for many years, going back as far as 1866,
The judge rightly ruled that the lease did not convey the fee in the passageway, although the term exceeded one hundred years. G. L. (Ter. Ed.) c. 186, § 1. Stark v. Mansfield, 178 Mass. 76. This ruling made applicable the master’s alternative finding that the westerly line of the plaintiffs’ land begins on the street at the northwest corner of the right of way and runs south in accordance with the courses and distances mentioned in the lease. The evidence summarized by the master supports this finding. In 1873 Benjamin F. Robinson, devisee under the will of Josiah Q. Robinson, deeded the tract east of the passageway to William P. Hurd. The description commences at the road, now West Main Street, and runs “thence west on the . . . road to the passageway that J. Q. Robinson and S. D. Groat made a mutual lease each way; thence south on lands of John Doyle and lands of Ivory Witt to the new contemplated street . . . .” Doyle had succeeded to Groat’s land, now land of the defendant Antonietta. For reasons stated below, it is unnecessary to determine whether this deed included the fee in' the passageway. In 1878 Hurd conveyed to John Barry by description “Commencing on the south side of the highway ... at the northeast corner of lands of John Doyle; thence southerly on lands of said Doyle about 94 feet to a stake and stones . . . .” We think that when this deed referred to “lands of John Doyle” it meant, or at least, under the circumstances disclosed, could be found to mean, the house lot owned in fee by Doyle and not the narrow strip sixty feet long which Doyle had the right to use only as a passageway. In this way alone can the course
The difficulty in locating the property line has been due to the fact that the deeds in the chain of title of each abutter use the land of the other abutter as the boundary. But in addition to the master’s findings the judge dealt with this matter himself by making a finding "at the request of both parties” to the suit that the property line between Robinson and Groat at the time of the lease ran in accordance with a designated line on a plan known as "Plaintiffs’ Exhibit No. 3.” The statement by the judge just quoted means that the parties agreed to this finding. Even if they did not intend to agree to the finding made, but intended only to agree that the judge should make some finding on the point, there is nothing to indicate on what evidence or exhibits the
We have not deemed it necessary to define the exact nature of the estate created by the so called lease. The master and the judge treated it as creating a right of way appurtenant to land of Groat, the lessee. See Hollenbeck v. McDonald, 112 Mass. 247. The plaintiffs have not appealed. The defendants contend that Groat’s rights in the way passed to them although not mentioned in the deeds. This would not be true, and the defendants on the findings made, as they are not assignees of the lease, would derive under it no rights in the way, if the lease created an independent leasehold estate in the land comprising the way as distinguished from an easement appurtenant to the defendants’ adjoining land. The defendants are not aggrieved by the manner in which the judge dealt with this matter. On the other hand, the plaintiffs as grantees of the reversion, on any construction of the lease, have all the rights of Robinson in the' way. Burden v. Thayer, 3 Met. 76. Taylor v. Kennedy, 228 Mass. 390, 394.
There was no error in denying the defendants’ motion to recommit. O’Brien v. Logan, 236 Mass. 507, 512. Epstein v. Epstein, 287 Mass. 248. Pearson v. Mulloney, 289 Mass. 508, 513.
The interlocutory decrees appealed from are affirmed. The final decree is to be modified by changing the time before which the structures are to be removed and the fence on the easterly side of the way relocated to a date thirty days after the entry of decree after rescript and as so modified is affirmed with costs.
Ordered accordingly.