336 Mass. 81 | Mass. | 1957
The plaintiffs Klein, Berler and Horn own respectively lots B, C, and D so called for our purposes in a block of buildings which we take to be apartment houses
The bills of complaint aver a right of way for all purposes over lot L so called. Lot L is comprised of an open area in the rear of lots A through F, G and K and a panhandle about twenty-five feet wide extending from Alton Place along the easterly side of lot A. The plaintiffs’ brief discloses that they seek to establish the right to use lot L as a driveway for driving automobiles onto the rear yards of their respective lots.
The cases were referred to a master and come here on the plaintiffs’ appeals from final decrees which dismissed the bills of complaint, and, pursuant to a prayer in the answers for such relief, enjoined the plaintiffs and those claiming under them, in perpetuity, from using lot L for any purpose excepting, however, the use of a foot passageway which is therein described. The plaintiffs filed objections to the report which stand as exceptions (Rule 90 of the Superior Court p.954Q) and contend as specified in the objections that the conclusions of the master were inconsistent with subsidiary findings. There was no error.
The original tract was subdivided in 1916. From 1916 to 1945 lots B, C, D, and L were in common ownership but they were subject to separate mortgages from and after dates as follows: lot B, June 1, 1916; lot D, October 26, 1916; lot L, November 2, 1916; lot C, August 18, 1919. Foreclosures of mortgages occurred on dates as follows: lot B, May 28, 1945; lot C, on or about April 23, 1946; lot D, June 25, 1948; lot L, May 13, 1949. The plaintiffs and the defendants take title by mesne conveyances which followed the foreclosures.
The buildings on the lots were completed in 1917. The master found that from 1917 to the beginning of these suits “lot L has been used by rubbish and garbage trucks of the town of Brookline, by various tradespeople, viz., milkmen, Iaundrymen, furniture movers, plumbers, carpenters, painters and deliverymen for the benefit of the occupants of lots A to F, and has also been used as a short cut by other persons walking from Harvard Street to Alton Place. These uses were begun with the permission of the original owners ... of all the lots A to L .... There has been neither protest nor express permission to those persons who from 1917 . . . have used the driveway on lot L.” Upon recommittal the master “based upon the
In the view we take of the cases it is not necessary to determine whether all the concluding findings can be deemed to be based only on subsidiary facts found. We assume for our decision that they are so based.
From 1917 to July, 1948, the fine between lot L and lots A through F was marked by shrubbery and poplar trees which formed the easterly and southerly landscaped background for the common lawn-garden area into which the back yards of lots A through F were merged in this period. This garden area was further defined on its long north side by a hedge and flower bed adjacent to the foot passageway, and by shrubs at the west end.
In 1948, the poplar trees were removed. In 1949 a chain link fence about three and one half feet high was erected enclosing the back yard of lot D. In 1949 or 1950 a similar fence was erected enclosing the back yard of lot B. In 1954 the then owner of lot L, not the defendants, placed a curbing of substantial wooden beams, bolted to the concrete, along the boundary line where the poplar trees had stood. The plaintiff Berler removed a portion of the beam adjacent to his lot, C, in 1955. The plaintiff Klein, joint owner of lot B, caused a portion of the beam adjacent to his lot to be removed in 1955.
There are twenty-two stalls for garages on lot L, along its southerly side. It does not appear when they were built. The exposed surface of the lot is covered with concrete.
1. There is no basis for a claim of an implied grant of the claimed easement. The mortgages on lots B and D and L
2. There is nothing in the facts to show the use of lot L, for the prescriptive period, in the way which the plaintiffs now claim the right to use it and no use sufficient to support the new use claimed. Fortier v. H. P. Hood & Sons, Inc. 307 Mass. 292, 299, and cases cited. See Swenson v. Marino, 306 Mass. 582, 583, 586. No use is found of lot L by the owners or occupants of lots B, C, and D. No access to the rear of these lots across the line between each of lots B, C, and D and lot L is found or inferable from the findings.
3. During the period of common ownership of all the lots and a mortgage on lot L, that is, from a date in 1916 to a date in 1945, the common owners and their tenants, on the subsidiary facts found, did nothing which would require the conclusion that they were asserting rights in lot L for the benefit of any of lots B, C, and D adverse to the title granted in 1916 to the mortgagee of lot L. The continued limited use made of lot L by tradespeople, begun by permission, was insignificant against the mortgagee where ownership of the equities of the dominant and servient estates was united and tenants in possession would look to their landlords for permission to use common areas not specifically leased. The signs at the front entrances on Alton Place reading “All goods delivered at rear door only” did not, in view of the foot passageway, imply direction of or consent to the entry of vehicles onto lot L. Had the signs implied any use of lot L, there would have been no implication that this was to continue after common ownership of all lots ceased. The signs on lot L, from and after sometime prior to 1932 reading “No Trespassing,” “No Parking,” and “Private Driveway,” spoke to those who had no rights in the driveway. They did not establish who had or had not such rights or suggest that such rights as existed otherwise than of record had other basis than the decision of the common owners as to how they would use and permit tenants to use their common property while it was so held. It is not necessary to consider whát acts of those who were the owners of both the dominant and servient estates and of tenants in possession of the dominant estates, after a break in the complete unity of title resulting from the mortgaging of the dominant and the servient estates (see Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100, 106-108; Goldstein v. Beal, 317 Mass. 750, 754), could be deemed adverse to the mortgagee of the servient estate, so as to create rights by prescription against such mortgagee and those claiming under him. See Holmes v. Turner’s Falls Co. 150 Mass. 535, 549; Ramos v. Mello,
Final decrees affirmed with costs of the appeals to the appellees.
The answers do not admit the allegations of the bills of complaint that the buildings are apartment houses and there is no express_ finding that such is the fact. A restriction of record in force when the buildings were built required “that no synagogue or other buildings other than apartment houses and private garages shall be erected on said premises or any part thereof during a period of five years now next ensuing.” Photographs in evidence are reasonable confirmation that the buildings are dwelling houses conforming to this restriction.
A photograph in evidence shows a walk, set off by a wire fence extending from the concrete passageway at a point about midway in the hedge on the north side of the lawn-garden, into and around a circular central flower bed. If this also continued to the south line and through the poplar trees (this is possibly suggested but cannot be concluded as a fact from the photograph, and there is no finding) it would not show use sufficient to support that now asserted.