323 Mass. 169 | Mass. | 1948
The plaintiffs in these proceedings seek a declaratory decree to determine their rights and those of the defendants in certain land in Rockport, hereinafter called the “Lane.” The case was referred to a master and his report, to which there were no objections, was confirmed by an interlocutory decree entered by consent of the parties. The case comes here on the defendants’ appeal from a final decree.
Facts found by the master include the following: The plaintiffs are the owners of land which includes a parcel called the “Lane.” The “Lane” is the sole means of access to the public highway (South Street) from a parcel
It appears that the lands bordering upon the “Lane” were formerly used for pasturage or for crops. “In addition to the use of the ‘Lane’ for ... a place over which cattle would go to pasture, the ‘ Lane ’ has been used during the past twenty-five or more years at various times by an owner of land lying on the opposite side of the ‘ Lane ’ . . . for carting gravel with motor vehicles, and horse drawn vehicles.” The grantors of the defendant first used a motor vehicle on the “Lane” in 1931. The defendant acquired title to his property in October, 1946, and.since that time has been selling gravel from a gravel pit thereon to his father Salvatore, also a defendant. Salvatore and those to whom he has sold the gravel have transported from fifteen
At the present time there are between forty and fifty cows pastured by the plaintiffs on the lands adjacent to the “Lane.” There is a gate (three hundred sixty feet from South Street) on the “Lane” which has been “maintained where now located during the period of time within the memory of old residents of Rockport.” On the northwesterly side of the “Lane” between the gate and South Street are farm buildings, where the cattle are kept, and the plaintiffs’ dwelling. The cows pass through this gate and then, without being driven, pass onto and over the “Lane” into the adjoining fields. In the latter part of the afternoon the cows gather at this gate, thereby interfering with, and causing considerable delay to, those travelling on the “Lane” with motor vehicles. On many occasions the defendants or their employees have failed to close this gate, with the result that the cows have wandered onto the public highway.
The final decree declared (1) that the use of the “Lane” by the defendants is limited to the terms of the easement contained in the original deed of October 2, 1820, to the Gotts, namely, “a privilege of a cart road to pass to and from the main street ” to the premises now owned by the defendant; (2) that the plaintiffs are entitled to limit the use of the easement to the “confines of the roadway therein, namely, the cart road”; (3) that the plaintiffs are “entitled to require the defendants to put up the bars and shut the gates when passing to and from South Street over the ‘Lane’”; and (4) that the transporting of loam and gravel over the “Lane” “exceeds any privilege shown to
While that part of the final decree which declared that the defendants’ use of the “Lane” was limited to the terms of the original deed to the Gotts was not erroneous, it needs clarification. The plaintiffs apparently take the position that the defendants’ use of the way with motor vehicles is not permitted under the decree. The defendant, on the other hand, argues that such use is not forbidden. Unless, therefore, the rights of the parties are defined more precisely, there is little likelihood that the controversy between them will be settled by this litigation.
The rights of the defendant with respect to the “Lane” were established by the deed of October 2, 1820, from Pool to his predecessors in title, the Gotts. These rights were not affected by anything contained in the subsequent deed of October 30, 1820, conveying the “Lane” to the person from whom the plaintiffs derive their title. The Gotts were not parties to that deed. “An easement cannot be imposed by deed in favor of one who is a stranger to it.” Hazen v. Mathews, 184 Mass. 388, 393. Murphy v. Lee, 144 Mass. 371, 374. We assume, as the defendant has argued, that the language in the later deed created an exception rather than a reservation (see Stockwell v. Couillard, 129 Mass. 231, 233), but that does not make the principle just stated any the less applicable. Kronoff v. Worcester, 234 Mass. 254, 259-260. The rights of the defendant were neither diminished nor enlarged by that deed.
The language “Together with a privilege of a cart road to pass to and from the main street to the said premises” used in the earlier deed constituted, we think, a grant of a general right of way for vehicles and did not restrict its use to horse drawn vehicles or limit the way to the width of vehicles then in common use. Crosier v. Shack, 213 Mass. 253, 256. Mahon v. Tully, 245 Mass. 571, 577. Swensen v. Marino, 306 Mass. 582. In the case last cited it was said at page 587, “We should be very slow to hold that even ancient rights of way, not expressly restricted as to the type of vehicle . . . could not be employed at all for the means of
It does not follow, however, that because the defendant has a general right of way over the “Lane” he may exercise it in any manner he sees fit. The way is “available for the reasonable uses to which the dominant estate may be devoted.” Parsons v. New York, New Haven & Hartford Railroad, 216 Mass. 269, 273. Rajewski v. MacBean, 273 Mass. 1, 6. The extent of travel and the size of the vehicles employed are not without limits. On the record before us we are not prepared to say that these limits have been exceeded, but they have been closely approached, if not reached. While the defendant’s use of the easement has doubtless caused the plaintiffs some annoyance, it does not appear to be so substantial as to be unreasonable or to amount to a nuisance. See Swensen v. Marino, 306 Mass. 582, 584.
The right to use the “Lane” includes the right to make reasonable repairs and improvements. Guillet v. Livernois, 297 Mass. 337, 340. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 298 Mass. 513, 514. “When an easement or other property right is created, every right necessary for its enj oyment is included by implication. ’ ’ Sullivan v. Donohoe, 287 Mass. 265, 267. The placing of gravel on portions of the “Lane” does not appear to be an unreasonable exercise of this right.
That part of the decree which declares that the use of the “Lane” for transporting loam and gravel amounts to a new servitude and overloads the easement is erroneous. Such a construction of the easement is too narrow. See Randall v. Grant, 210 Mass. 302. But the point need not be labored, for the plaintiffs in effect conceded this at «the arguments in this court.
The defendant asserts that in maintaining a gate on the
If, as we hold, the plaintiffs have a right to maintain the gate, the defendant and those using the “Lane” in his right
It follows that the final decree is reversed and a new decree is to be entered defining the rights of the parties with respect to the “Lane” consistently with this opinion. We leave the details of the decree to be worked out by the Superior Court. But in general it should declare that the defendant and those using the “Lane” in his right may travel over the “Lane” in motor vehicles, the extent of such travel and the size of the vehicles used not to be in excess of that disclosed in the report of the master; that the plaintiffs’ cattle may pass over the “Lane”; and that the plaintiffs shall have the right to maintain the gate near the entrance to the “Lane” and the defendant and those using it in his right must close it after passing through it.
So ordered.
As the master found “This deed . . . did not particularly define the places where the gates were to be maintained on the premises.”