318 Mass. 752 | Mass. | 1945
This is a petition to register the title to a parcel of land in Leicester, including as appurtenant thereto an easement to use and enjoy a supply of water upon the premises of the respondent and to maintain a conduit for the flow of said water to the land of the petitioner. The judge of the Land Court ruled that the petitioner was entitled to a decree of registration of the title to the locus
The petitioner’s property, known as Chapel mill, hereinafter referred to as the Chapel lot, is located on the northerly side of Main Street and the easterly side of Chapel Street. The premises consist of a group of buildings which were designed and constructed for the manufacturing of woolens and for similar uses. This mill, which has been in substantially continuous operation since' 1868, has used considerable quantities of water which it secured from Kettle Brook by means of a canal into which water was discharged from a small pond raised by a dam across this brook. Later this canal was fed by pipes which ran to a mill pond, and finally in 1940 a four inch pipe was placed in the canal and the canal was filled in. The respondent owns the Brick City mill, hereinafter referred to as the Brick City lot. Kettle Brook runs through the Brick City lot, and a supply from this brook over this lot is reasonably necessary for the beneficial enjoyment of the Chapel lot.
The Chapel Mills Manufacturing Co. in 1903 acquired title to both lots, together with other parcels of land, forming a contiguous tract of land on both sides of Chapel Street and extending westerly to Kettle Brook. The Brick City lot consisted of several mill buildings, the small pond and the mill pond already mentioned. The canal ran southerly from the Brick City lot to the Chapel lot and for about two hundred feet was located on the Brick City lot, and then passed under Chapel Street and continued for about seven hundred feet on the Chapel lot. This canal, which served as both a reservoir and a conduit, was six or eight feet wide and its depth varied from one to four feet. The flow of water in this canal was controlled by a gate at the small pond on the Brick City lot. Later the small pond and the spillway from the mill dam which emptied into the small pond were by-passed by a flume, and two pipes led to the Brick City mill. The flume was replaced in 1923 by a twelve inch pipe. A six inch branch from this pipe ran along the westerly wall of the mill building on the
The trustee in bankruptcy of the Channing Smith Textile Corporation sold thirty-five parcels of real estate and numerous lots of machinery and personal property separate from the real estate at public auction in June, 1931. An elaborate catalogue of the real and personal property including a plan showing the location of all these parcels was prepared and distributed to the bidders. The first parcel described in this catalogue was the Brick City lot which, it was stated in the catalogue,. was to be sold subject to certain described water rights in favor of parcel numbered 2, which was the Chapel lot. After describing the Chapel lot, the catalogue stated in a note that “Included with this parcel is the right to maintain the canal leading from Parcel No. 1 to Parcel No. 2 as it at present exists, together with the right to the flowage of water through the canal and the right of access to that portion of the said canal which lies within the bounds of the said Parcel No. 1 for purposes of operation, maintenance and repair.” The Brick City lot was sold to Lowis and Zelkind, and a few minutes later the Chapel lot was sold to one Krock. The deeds to both lots were dated and approved by the referee in bankruptcy on July 14, 1931. The deeds contained no warranties, and
The owner of a parcel of land may lay out or instal over or in a part of his land a way, water pipe, drain, sewer or other physical arrangement or structure for the benefit of another part of the land, and the use and enjoyment of this quasi easement while there is unity of possession and title in the entire parcel will not create any real or actual easement, Ritger v. Parker, 8 Cush. 145; Rogers v. Powers, 204 Mass. 257, 262; York Realty, Inc. v. Williams, 315 Mass. 287, 289, but upon a severance of title, in the absence of anything to the contrary in the instrument of conveyance, a conveyance of the dominant estate will carry with it an implied grant of the easement for the benefit of the land conveyed, and a conveyance of the servient estate will create the easement by an implied reservation for the benefit of the land retained, if the language of the instruments of conveyance read in the circumstances attending their execution, including the physical situation and characteristics of the land and the knowledge which the parties had or with which they were chargeable, leads to the conclusion that such an implied easement, by grant or reservation, as the case may be, must have been within the presumed intention of the parties. Atkins v. Bordman, 2 Met. 457, 464. Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 410. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100, 105-106.
The fact that a severance of title is effected by simultaneous instruments of conveyance does not prevent the implication of an easement, but is a circumstance that must be considered in ascertaining the intention of the parties. Buss v. Dyer, 125 Mass. 287. Lefavour v. McNulty, 158 Mass. 413. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100. We do not think that the doctrine of implied easement is to be restricted in its application on account of the fact that the grantor is a trustee
In this aspect of the case, further findings of the judge must be considered. The entire course of the canal was apparent and obvious. It ran from a source of a water supply located upon the Brick City lot to the Chapel lot. So far as appears, no other manufacturing plant was situated upon the banks of this canal. Its location indicated that it was for the exclusive use and enjoyment of the Chapel lot. The canal was dry at the time of the public auction by the trustee in bankruptcy, but the mills on both lots had not" been in operation for some months previously, the valves in the pipe lines upon the Brick City lot feeding this canal had been closed, and the condition of the canal was similar to the condition generally prevailing at both mills and amounted to no more than the usual condition resulting from temporary disuse of manufacturing plants. The piping at the Brick City lot connecting the mill pond with the canal was readily observable by anyone interested enough to make a cursory examination. Indeed, the purpose of an artificial canal as distinguished from a natural water course running to a woolen mill could hardly have been misunderstood. The physical situation of the canal, its appearance as to age, its relation to both lots, and the nature of the business which had been carried on on both lots and for which these premises were adapted and designed and which required large quantities of water, reasonably lead to the conclusion that the canal had been excavated and maintained for the benefit of the Chapel lot. Regard too must be had to the statements and the plan contained in the catalogue, and to the announcement made by the auctioneer based upon those statements, in so far
The respondent excepted to the admission of certain pages of the catalogue describing the two lots in question together with the notations concerning the water rights, to the plan included in the catalogue, and to the statements of the auctioneer. Where the description of the premises in a deed is clear and explicit, paroi evidence is not admissible to contradict, control or modify the description or to show that the parties intended something different from that expressed in the deed. Cook v. Babcock, 7 Cush. 526. Hirsch v. Fisher, 278 Mass. 492, 495. Supraner v. Citizens Savings Bank, 303 Mass. 460, 463. And the statements made by an auctioneer describing the land he is selling come within the rule. Oliver v. Pitman, 98 Mass. 46. Bentley v. Mills, 174 Mass. 469. But whether the deed to the Chapel lot carried with it by implication an easement over the Brick City lot did not depend entirely upon the construction of the language of the deed, but the deed was to be construed with reference to all the facts within the knowledge of the parties in reference to the subject matter of the grant in order to determine and effectuate the presumed intention of the parties. It was open to the petitioner to show that an implied easement was embraced in the conveyance. Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 410. Orpin v. Morrison, 230 Mass. 529, 533.
The declaration of a grantor made before the delivery of a deed, that he did or did not intend to convey an easement, is not competent on that issue. Cook v. Babcock, 7 Cush. 526. Queenin v. Blank, 268 Mass. 432, 435. Compare Bond v. Orr, 266 Mass. 475, 481. In Parker v. Bennett,
The evidence in question being admissible for the limited purposes mentioned, a general exception to its introduction without requesting that it be limited to the particular purposes for which it was competent is not to be sustained. Leonard v. Boston Elevated Railway, 234 Mass. 480, 483. Irwin v. Worcester Paper Box Co. 246 Mass. 453, 456. Curtin v. Benjamin, 305 Mass. 489, 493. Moran v. School Committee of Littleton, 317 Mass. 591, 595.
The statements of Krock, the purchaser of the Chapel lot at the auction sale, to a representative of the Valley Mills, Inc., shortly before that company purchased this lot in 1932 and to the petitioner before he purchased the' lot in 1937, to the effect that he had water rights over the land of the respondent, were merely his own view of what his
There was evidence that for fifteen years before the auction the Chapel lot had a supply of water from a main of a water company with which it was connected with a three-fourths inch pipe. It is urged by the respondent that, if an easement to secure water from the canal existed in favor of the Chapel lot, the easement terminated when the .necessity for its continuance ceased upon water becoming available from this main. But can it be said that the parties contemplated that the use of the canal by the owners of the Chapel lot should cease when a supply became available from one of the street mains? The mills on the Chapel lot had used the water from the street main for drinking purposes and for the sprinkler system, but they did not use the water from the main for manufacturing purposes except when the supply in the canal was inadequate or too dirty to use in the manufacturing process. In a general way water from the mains was used only in the same way as
The judge ruled that the petitioner was entitled to a decree giving him the right to draw water through the pipe which had been installed in the location of the old canal and which had superseded the canal as a conduit for the conveyance of the water to the petitioner’s premises, together with the right to enter upon the land of the respondent “for the purpose of maintaining, repairing, relaying and reconstructing” this pipe and the other pipes included in this water supply system. The respondent contends that the petitioner is not entitled to relay or reconstruct the pipes. The petitioner was entitled to a flow of water from a source upon the respondent’s land, and he had a right to enter upon the respondent’s land for the purposes of making repairs and of doing in a reasonable manner such things as were necessary to secure a continuance of this flow of water. Prescott v. White, 21 Pick. 341. Willard v. Stone, 253 Mass. 555. Guillet v. Livernois, 297 Mass. 337. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 298 Mass. 513. Van Buskirk v. Diamond, 316 Mass. 453. The words “relaying and reconstructing” must be construed with the context in which they appear. We think they go no farther than to authorize the petitioner to reconstruct all or such parts of the pipes which in the course of time have become in
Exceptions overruled.