317 Mass. 750 | Mass. | 1945
By this bill in equity the plaintiff seeks a mandatory injunction ordering the defendant Beal (hereinafter called the defendant)
The evidence is reported and the trial judge filed a statement of “findings, rulings and order for decree.” The pertinent facts, concerning which there is no dispute, are these: The plaintiff owns land which is bounded on the northeast side by land of the defendant. Both titles are derived from a common owner in the following circumstances: Prior to May 20, 1916, the lots now owned by the plaintiff and the defendant were parts of a larger parcel owned by one Shapira as trustee of the City and Suburban Real Estate Trust. On May 20, 1916, Shapira filed a petition in the Land Court for the registration of title to this parcel as shown on a plan which was filed with the petition. The lots of the plaintiff and the defendant formed a part of lot A included in that plan but were not set off as separate lots. At approximately the same time Shapira conveyed lot A to one Maguire. On January 17, 1917, the Land Court issued a decree of registration of title to lot A on Shapira’s petition but in the name of Maguire, whose name had been
• On September 29, 1917, a plan (dated May 17, 1916) was referred to in a certificate of title of one Brown, who then owned lot A, as hereinafter stated. By this plan lot A was subdivided into three lots: Al, A2 and A3. The plaintiff is the owner of lots A2 and A3 and the defendant owns lot Al. . Lots Al and A2 are contiguous and the controversy in this case concerns them.
The subdivision plan shows a passageway eleven feet wide between lots Al and A2 running from Allston Street, to a twelve-foot passageway
There is at the present time a passageway between the two buildings running from Allston Street to the twelve-foot passageway in the rear, although not in the same position as that designated in the subdivision plan. In addition to the fire escape which hangs over the present passageway, a flight of concrete steps slightly over eleven feet long extends into it from' the plaintiff’s building to the extent of three feet three and five eighths inches, leaving a space of forty inches between the' steps and the fire escape. The steps, however, are entirely on the plaintiff’s land and do not extend into the passageway designated on the subdivision plan.
The plaintiff holds a transfer certificate of title to lots A2 and A3 dated July 27, 1933. The defendant holds a transfer certificate of title to lot A1 dated December 13, 1929. Each certificate referred to the lot or lots included therein as those shown on the subdivision plan.
A final decree was entered dismissing the bill with costs' to the defendant Beal; it further provided that the defendant Beal has the right to maintain his building and fire escape as they now exist, and that the plaintiff execute within thirty days “an instrument of conveyance so that the passageway between lots Al and A2 . . . [as shown on the subdivision plan filed in the Land Court] may be established as of record as it now exists in fact, including an easement appurtenant to said Lot A1 for the maintenance of a fire escape substantially as it now exists as described in the findings, rulings and order for decree.”
1. No easement in favor of either lot was acquired with respect to the eleven-foot passageway designated on the subdivision plan. The Land Court by its original decree of registration issued to Maguire created no easements or rights with reference to the eleven-foot passageway. So long as there was a common ownership of the two parcels there could be no easement in favor of one lot operating as a burden on the other. Johnson v. Jordan, 2 Met. 234, 239. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100, 105. Oldfield v. Smith, 304 Mass. 590, 593. If any easement came into existence it was only upon a severance of the common ownership. Mt. Holyoke Realty Corp. v. Holyoke Realty Cory. 284 Mass. 100, 105. Ansin v. Taylor, 262 Mass. 159, 164. There was such a severance when the common owner, who was then Brown, gave a mortgage of lot A1 to the Boston Mortgage Bond Company, and a mortgage of lots A2 and A3 to the Mooneys. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100, 106-108. These mortgages were registered on September 29, 1917, and reference was made in them to the subdivision plan. As stated above, there had been such a reference in the certificate of Brown, the common owner and mortgagor, bearing the same date. The plan had not previously been referred to in any registered deed; thereafter it was mentioned in all deeds and certificates, including those
A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed. Boston Water Power Co. v. Boston, 127 Mass. 374, 376. Downey v. H. P. Hood & Sons, 203 Mass. 4, 10. Carroll v. Hinchley, 316 Mass. 724, 729, and cases cited. “The purpose and effect of a reference to a plan in a deed, is a question of the intention of the parties.” Regan v. Boston Gas Light Co. 137 Mass. 37, 43. Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp. 254 Mass. 350, 354. “In determining the intent, the entire situation at the time the deeds were given must be considered. For example, whether the ways in question merely existed on paper, or were then constructed on the ground; whether they were then actually used as appurtenant to the granted premises; or whether they were remote or in close proximity.” Prentiss v. Gloucester, 236 Mass. 36, 52-53. Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp. 254 Mass. 350, 355.
In general the same principles that govern the effect to be given a plan in the case of unregistered land apply where the land is registered. Dubinsky v. Cama, 261 Mass. 47, 53. These principles are now well established. The difficulty is in applying them to a particular set of facts.
The plaintiff has directed our attention to cases holding that, where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan. See Farnsworth v. Taylor, 9 Gray, 162; Fox v. Union Sugar Refinery, 109 Mass. 292; Langmaid v. Higgins, 129 Mass. 353, 356; Drew v. Wiswall, 183 Mass. 554; New England Structural Co. v. Everett Distilling Co. 189 Mass. 145, 151, 152; Downey v. H. P. Hood & Sons, 203 Mass. 4, 10. This undoubtedly is a well settled principle
In the case under consideration the passageway in question never in fact existed on the land. At the time of the severance of the common ownership above referred to, the buildings had been erected in their present position, and the ■ passageway outlined on* the plan could not have come into existence in fact without removing nearly six feet of the building now owned by the defendant. We are aware that in other circumstances a reference to a- plan in a deed on which a passageway is designated may be sufficient to create rights in it. See Lagorio v. Lewenberg, 226 Mass. 464; Dubinsky v. Cama, 261 Mass. 47.- But we think on the facts here that the trial judge was right in concluding that “the passageway between lots Al and A2 as contemplated by the plan of subdivision . . . never came into existence and the plaintiff has no rights therein.”
2. The final decree provided that the defendant has the right to maintain the fire escape on his building in the-position in which it now is. We think this was error. As pointed out above, the fire escape in its present position extends over the plaintiff’s land for three feet nine inches. The defendant contends that the right to maintain the fire escape in this manner was an easement appurtenant to lot Al. We assume in the defendant’s favor that if the plaintiff’s land were not registered an appurtenant easement in favor of the defendant’s land to maintain the fire escape would exist by implication after a severance of the common ownership. See Mt. Holyoke Realty Corp. v. Hol-
The fire escape, extending as it does over land of the plaintiff, constitutes a trespass and the plaintiff is entitled to have it removed. Zimmerman v. Finkelstein, 230 Mass. 17. New York Central Railroad v. Ayer, 239 Mass. 70. Geragosian v. Union Realty Co. 289 Mass. 104, 108-110, and cases cited. In the Geragosian case it was said at page 109, “The facts that the aggrieved owner suffers little or no
It is true that there have been cases,
3. The decree was wrong in ordering the plaintiff to execute an instrument of conveyance so that the passageway between lots Al and A2 be established as of record as it now in fact exists. The passageway as it now exists is approximately eleven feet wide between the walls of the plaintiff’s and the defendant’s buildings and all but nine inches of it is on the plaintiff’s land. No easement was ever acquired by the defendant in this passageway. Such an easement, as pointed out above, can be acquired only if it is disclosed on the certificate of title to the lot which is subjected to it. Dubinsky v. Cama, 261 Mass. 47. G. L. (Ter. Ed.) c. 185, §§ 45, 46, 57. Since no such encumbrance
4. The remaining question is whether the plaintiff is barred by laches, which was pleaded by the defendant. The judge found that she was. He found, however, that the defendant has “not been prejudiced in any way by the delay except that, due to war conditions, . . . [he] would find it exceedingly difficult if not impossible to make the change which would be necessary were the plaintiff given the relief which she seeks.”
The facts with reference to this aspect of the case, which are not in dispute, are as follows: The plaintiff acquired title to lot A2 in 1933. In 1935 she consulted counsel, and in 1937 she had the property surveyed. The bill in equity in this case was filed on August 4, 1941. “The question of laches is one of fact, and is as fully open before us on the evidence as it was before the judge.” Beaudoin v. Sinodi-nos, 313 Mass. 511, 519. Mere delay not extending beyond the period of the statute of limitations does not constitute laches. There must be delay that works some prejudice or disadvantage to the defendant. Calkins v. Wire Hardware Co. 267 Mass. 52, 69. Westhampton Reservoir Recreation Corp. v. Hodder, 307 Mass. 288. Norton v. Chioda, ante, 446. The only prejudice to the defendant is that due to war conditions it would be difficult to comply with a decree ordering the removal of the fire escape. No doubt that is an important factor to be considered by the court below in the enforcement of such a decree. But we cannot assume that these conditions will be permanent. Consequently the plaintiff should not because of that fact be barred from relief to which she otherwise would be entitled. xjThe defendant has argued that the delay of the plaintiff’s predecessors in title should be imputed to her in considering the question of laches. We do not agree. The presence of the fire escape over the plaintiff’s land constitutes a continuing trespass and she is entitled to have the question of laches determined on the basis of her own conduct; she should not be chargeable with the delay of her predecessors
The final decree is reversed and a new decree is to be entered ordering the removal of so much of the defendant’s fire escape (under such terms and conditions as the Superior Court deems proper in view of war time conditions) as extends over the plaintiff’s land, with costs to the plaintiff.
So ordered.
The Boston Penny Savings Bank, which holds a mortgage on the premises of the defendant, is also named as a defendant.
There is no controversy concerning this passageway.
In the plaintiff’s certificate the wording is as follows: “Said land is shown as lots A-2 and A-3 on a subdivision plan drawn by FuHer-Whitney Surveys Corpn., dated May 17, 1916, as approved by the court, filed in the Land Registration Office as plan No. 5947-C, a copy of a portion of which is filed with certificate of title No. 9514.” Similar wording appears on the defendant’s certificate except that it refers to lot Al.
Brande v. Grace, 154 Mass. 210. Lynch v. Union Institution for Savings, 159 Mass. 306. Harrington v. McCarthy, 169 Mass. 492. Cobb v. Massachusetts Chemical Co. 179 Mass. 423. Levi v. Worcester Consolidated Street Railway, 193 Mass. 116. Kendall v. Hardy, 208 Mass. 20. Loughlin v. Wright Machine Co. 273 Mass. 310. Malinoski v. D. S. McGrath, Inc. 283 Mass. 1, 11. Gray v. Howell. 292 Mass. 400, 403, 404. Triulzi v. Costa, 296 Mass. 24. 28.