210 Mass. 402 | Mass. | 1912
No claim is now made that the respondents have any title to the fee of the roadway in question, or that they have any right of way over it by estoppel under the rules laid down in such cases as Motley v. Sargent, 119 Mass. 231, 236 ; Lemay v. Furtado, 182 Mass. 280; McKenzie v. Gleason, 184 Mass. 452; Gould v. Wagner, 196 Mass. 270; and Downey v. H. P. Hood & Sons, 203 Mass. 4. It is not denied that the fee of the roadway, subject to whatever rights of passage have been created therein, vested in the petitioner’s grantors, the sons of John Pew, by the devise to them of his business property. Cleverly v. Cleverly, 124 Mass. 314. Dudley v. Milton, 176 Mass. 167. Nor do the respondents claim that they are entitled to a way by necessity strictly so called. The main question is whether upon the findings made by the judge of the Land Court, so far as those findings were warranted, he was right in ruling that under the will of John Pew his widow took as appurtenant to the estate specifically devised to her an easement of passage over this way from Main Street to her rear land.
By the second clause of his will, Mr. Pew devised to his widow his “ homestead situate on the southerly side of Union Hill in said Gloucester as now enclosed.” After other and various devises and bequests, he provided in the sixteenth article of his will that the garden southerly of his dwelling house should be a part of the homestead given to his wife, and added, “ And I do hereby devise said garden to my said wife as a part of said homestead.” This included the stable and garden lot, to which as well as the dwelling house it is now claimed that the way is appurtenant. The judge at the trial found as a fact, from the other facts found by him, that at the time the will was made and at the date of the testator’s death the only reasonable means of access to the stable and garden lots was by the way in question. As this was an inference which could be drawn from those facts, the finding is now conclusive, and we cannot con
Upon this finding and the other facts stated in the exceptions and in the decision of the Land Court which is referred to therein, it appears to us that the devise to Mrs. Pew was intended to include the right of way which has been mentioned. This depends upon the intention of the testator, as gathered from the language which hechas used, considered in the light of the circumstances as known to him, and with the help of all the evidence available to show what those circumstances were. Leonard v. Leonard, 2 Allen, 543, 545. Bagley v. New York, New Haven & Hartford Railroad, 165 Mass. 160, 164. As the way was laid out by him over his own land and was afterwards used by himself and those with whom he was connected, we must look at its origin and history, at the manner of its use, and the purpose with which it was wrought for travel, so far as that purpose was manifested by its situation, the manner of its construction, and the use which he himself made and allowed others to make of it. These facts have been found with some detail; and from them it was certainly proper, if indeed it was not necessary, to draw the inference that Mr. Pew built and maintained this roadway for the purpose of affording convenient access to all the parts of his property abutting upon it, including the garden and stable lot in the rear of his dwelling house, as well as the wharves at the end of the way and the business property, both what he first owned and what he afterwards acquired, lying upon the other side of the way. It also could well be found, as manifestly it was found, that he continued to have this intention during his lifetime, and to use the way in conformity therewith. It was under these circumstances that he made his will, and in the first operating clause thereof after the appointment of his executors devised to his wife his homestead “ as now enclosed.” Then, after having almost completed his testamentary dispositions, his mind reverted to the provision made for his wife, and he seems to have feared that under the language he had used she would not take all that he desired her to have, or else to have resolved to make a more liberal provision for her; and he accordingly expressly devised to her the garden which he had used
There is no rule of property or principle of law to prevent us from carrying out the intention of this testator. On the contrary there is much authority for saying that if Mr. Pew had in his lifetime made simultaneous conveyances of his property in the same language that he used in his will, this roadway, visibly wrought on the surface of the ground, would have been subjected to an easement of passage in the hands of its grantee. Scott v. Moore, 98 Va. 668. Phillips v. Phillips, 48 Penn. St. 178.
This court, like some others, never has gone to the full length of some of the decisions above referred to; but the underlying principle has been recognized and upheld. - Atkins v. Bordman, 2 Met. 457, 464. Leonard v. Leonard, 2 Allen, 543, 545, and 7 Allen, 277, 283. Oliver v. Dickinson, 100 Mass. 114. Adams v. Marshall, 138 Mass. 228, 236. Case v. Minot, 158 Mass. 577. Pearson v. Spencer, 3 B. & S. 761. Brown v. Alabaster, 37 Ch. D. 490. Milner's Safe Co. v. Great Northern & City Railway, [1907] 1 Ch. 208. It has indeed been said that the rule is to be applied with some strictness and only where the easement which is sought to be maintained, though not expressly granted, is yet necessary to the enjoyment of the estate which has been conveyed. Johnson v. Jordan, 2 Met. 234. Carbrey v. Willis, 7 Allen, 364, 369. Randall v. McLaughlin, 10 Allen, 366. Buss v. Dyer, 125 Mass. 287, 291. Cummings v. Perry, 169 Mass. 150, 155. McSweeney v. Commonwealth, 185 Mass. 371, 374. Warren v. Blake, 54 Maine, 276. Dolliff v. Boston & Maine Railroad, 68 Maine, 173. Stevens v. Orr, 69 Maine, 323. Hildreth v. Googins, 91 Maine, 227. Whiting v. Gaylord, 66 Conn. 337. Standiford v. Goudy, 6 W. Va. 364. Pheysey v. Vicary, 16 M. & W. 484. Worthington v. Gimson, 2 El. & El. 618. But the necessity thus required is not an absolute physical necessity, but merely such a reasonable necessity for the use and enjoyment of the dominant estate as has been found to exist here. Leonard v. Leonard, 7 Allen, 277, 283. Pettingill v. Porter, 8 Allen, 1. Oliver v. Pitman, 98 Mass. 46, 50. Schmidt
It is necessary also for the creation of such an easement that it should be open and continuous. And it has been said that the easement of a private way, being used only at more or less frequent intervals and without any visible mark upon the ground, is non-continuous and therefore will not pass where other easements, continuous in their nature and being such as would be readily apparent upon inspection, would pass. Parsons v. Johnson, 68 N. Y. 62, 65. Bonelli Bros. v. Blakemore, 66 Miss. 136. Fetters v. Humphreys, 4 C. E. Green, 471. Young v. Pennsylvania Railroad, 43 Vroom, 94, 98. Kelly v. Dunning, 16 Stew. 62. Whiting v. Gaylord, 66 Conn. 337. Oliver v. Hook, 47 Md. 301. Francie’s appeal, 96 Penn. St. 200. Suffield v. Brown, 4 DeG., J. & S. 185. Polden v. Bastard, L. R. 1 Q. B. 156. But those decisions do not apply to this ease. We have here a roadway of considerable width, situated in the residential and business part of a thriving city, used as appurtenant both to private residences and to business properties and wharves, running between well defined bounds, and actually built or wrought upon the surface of the ground. A glance would show that it was intended to be used and was in fact used for the purposes of a public street so far as concerned the accommodation of those who occupied properties abutting upon it or reached by it. As to Mr. Pew, who had laid it out and wrought it for travel, though not to the general public, it stood in the place of a public street. This case is distinguished from most of the decisions just referred to, and comes within the exception stated in some of them. It is directly within the language used in Fetters v.
It is necessary that the right should have been in use at the time of the grant of the principal estate. This was held in many of the cases already referred to. See also Haverhill Savings Bank v. Griffin, 184 Mass. 419; Hart v. McMullen, 30 Canada S. C. 245. But the Land Court has found that this was the case, and that there has been no abandonment of the use; and the occasional opening or closing of gates, with or without a fastening and for a longer or shorter time, raises only a question of fact which has been passed upon at the trial and which we cannot reopen.
Nor, for somewhat similar reasons, can we say that the right of the respondents to use this way is limited to the two gates by which entrance was had from the way into the garden and stable lot. The apparent and obvious purpose of Mr. Pew in constructing this way, so far as his homestead estate was concerned, was to provide accommodation for that estate, the particular mode of use being left to the convenience and desires of the occupants from time to time. This was the right which he enjoyed, and. which he intended to pass to his widow by the broad language of Ms devise to her.
So, too, it cannot be said as matter of law, whatever might have been found at the trial as matter of fact, that the easement can be upheld only for domestic purposes. The right created was appurtenant to the homestead estate, and was not limited to any particular purposes. According to the finding of the Land Court and the ruling made thereon, “ both at the time the will was made and at the time of the testator’s death, the homestead as enclosed had, in actual use in connection with it and reasonably necessary to its enjoyment, access over the way for all purposes for which a private way could ordinarily and properly be used.” So far as this is a finding of fact, we cannot review it; as a ruling, it properly followed from the findings which appear to have been made. Salisbury v. Andrews, 19 Pick. 250, 256. Parks v. Bishop, 120 Mass. 340. Baldwin v. Boston & Maine Railroad, 181 Mass. 166. And see Fox v. Union Sugar Refinery, 109
Abandonment is of course a question of fact. New England Structural Co. v. Everett Distilling Co. 189 Mass. 145.
There is no such fundamental change of use here as was shown in Great Western Railway v. Talbot, [1902] 2 Ch. 759, and similar cases.
It is to be observed that we have here the case of an easement ' passing by the plain intention of a testator, not solely by necessary implication, and not at all an attempt to create one by an implied reservation contrary to the terms of the grant itself. That would have presented a more difficult question, which need not here be considered.
The petitioner’s main contentions have been disposed of by what has been said. Its requests for rulings, so far as they were refused and have not been dealt with already, seem to have become immaterial because the protases thereof were not found by the judge. We discover no error in their refusal.
The industry of the petitioner’s counsel has collected many cases, not all of which have been cited though all have been examined, in which claims that easements had been created by implication upon the severance of estates previously held in a single ownership have been overruled. They seem almost without exception to have been decided either on the ground that no intent to create such easements had been manifested, or by reason of the absence of some one or more of the necessary grounds which have been stated. They do not furnish authority for the decision of this case.
Exceptions overruled.