226 Mass. 464 | Mass. | 1917
The defendant owned a tract of land on Blue Hill Avenue in that part of Boston called Dorchester, upon a portion of which he had built a block of one story stores. In February, 1911, he caused a plan of the entire premises to be made and recorded in the Suffolk Registry of Deeds. The plan showed an eight foot strip of land in the rear of the block, and on the north side a right of way eight feet wide. At this time he gave a mortgage to the Attleborough Savings Bank, upon that part of the tract on which the block stood with the eight foot strip in the rear — the premises now owned by the plaintiff and shown on the plan as “Lot 69A.” The mortgage contained this clause at the end of the description: “with a right of way eight (8) feet wide over said remaining portion of Lot 69, being the northerly side line of the premises herein conveyed, and being shown on a plan of land in Dorchester by S. L. Leftovith, Surveyor, dated February 1911, and to be recorded herewith.” December 14, 1911, the defendant conveyed to Annie S. Levenson the land on which the block was erected with the eight-foot strip in the rear, the description by metes and bounds corresponding with that in the mortgage, reference being made to the plan, “and being shown on a plan of land in Dorchester by S. L. Leftovith, Surveyor, dated February 1911, and recorded with Suffolk Deeds, Book 3523, Page 262.” November, 1913, Levenson conveyed the same premises to the plaintiff, the description corresponding in all respects to that in the deed from the defendant to said Levenson. The premises were conveyed subject to the mortgage which has now been discharged. The plaintiff claims a right of way over the eight foot strip of land, on the north of her line, marked “Right of Way” on the plan, as an appurtenance to her premises. In the Superior Court a decree was entered for
Although neither in the deed from the defendant to Levenson, nor in the deed from Levenson to the plaintiff, was reference made in words to the right of way, each deed referred to the plan and mentioned the land conveyed, as that shown on the plan. The plan, therefore, became a part of the contract of the parties and. by this reference became incorporated into the deed and described the rights intended to be conveyed. A right of way was shown on the plan and it became appurtenant to the premises conveyed as clearly as if mentioned in the deed. Farnsworth v. Taylor, 9 Gray, 162. Rodgers v. Parker, 9 Gray, 445. Flagg v. Phillips, 201 Mass. 216. Downey v. H. P. Hood & Sons, 203 Mass. 4. Kaatz v. Curtis, 215 Mass. 311. Oliver v. Kalick, 223 Mass. 252.
“It [the plan] must be considered as malting a part of the contract in each case, so far as is necessary to aid in the identification of the lots, and the description of the rights intended to be conveyed. All the particulars appearing on the plan and applicable to these lots are to be regarded as if they had been fully set forth in the deeds.” Boston Water Power Co. v. Boston, 127 Mass. 374, 376. Downey v. H. P. Hood & Sons, 203 Mass. 4, 10. It follows that the plaintiff has a right of way over this strip, and the decree of the Superior Court must be affirmed.
The defendant offered to show that no tenant of the stores had ever used this right of way. The judge was right in excluding this evidence. It did not show an abandonment; at most, it was merely some evidence of a non-user for a comparatively short period of time and the right of way created by deed was not lost by mere non-user. Willets v. Langhaar, 212 Mass. 573, 575. Parsons v. New York, New Haven, & Hartford Railroad, 216 Mass. 269, 272.
The defendant excepted to the evidence of the mortgage from the defendant to the bank. Even if there were error in admitting this evidence no harm was done the defendant. The rights of the
The defendant also offered to show that, when he conveyed to Levenson, he refused to sign the deed conveying to her the right to use the way, and stated to her that he was not conveying any right of way; that she bought with full knowledge she was not acquiring such right. This evidence was excluded, the defendant excepting. There was no evidence of knowledge on the part of the plaintiff of what was said between Levenson and the defendant, the plaintiff’s title could not be taken away or impaired by this conversation.
The defendant offered to show “that when Levenson (then Kaplin) sold said land to the plaintiff, the plaintiff was not informed, and had no reason to suppose that she was then acquiring this right of way . . .; that when the plaintiff acquired the land, she acquired it by the deed in evidence, and with no statement, knowledge or expectation that she was acquiring the right of way she now claims.”' This offer was rightly excluded. The plaintiff’s title is governed by the written instrument. The information given her by her grantor or the failure to give any information, is not material. Sargent v. Leonardi, 223 Mass. 556, 558.
Decree affirmed.
