273 Mass. 543 | Mass. | 1931
This is an appeal by the respondents from a decision of the Land Court upon a petition for the registration of land in Ludlow. The respondents own land adjoining on the south the land sought to be registered. The location of the boundary line between these two tracts of land is the matter in dispute.
The judge of the Land Court found as follows: “The petitioner formerly owned as one parcel the respondents’ land and the present locus. She made a deed in 1891 to her brother of whatever land the respondents are now entitled to. . . . There lies between these two properties a sort of ravine running east and west. . . . Through the bottom of this ravine a small brook formerly ran westward. Some years ago the town built a sewer a few feet south of the brook, laying a fifteen inch drain pipe and connecting the brook with such sewer by a ten inch drain pipe .... Since these arrangements were completed substantially all traces of the brook and the bed of the brook have disappeared, except a small muddy area at . . . [one] corner. From the bottom of the ravine the land rises sharply on either side to the general level of the surrounding territory. It is unimproved, bush-grown and almost worthless land. The distance up these slopes on either side, as shown on the filed plan, indicates an average of about forty feet. The perpendicular depth of the ravine might be about twenty feet. There was no definite evidence of the breadth of the south bank of said brook, regarded as a strict legal term relating to riparian rights; but in view of the size of the sewer pipes used to dispose of its flow . . . such ‘bank ’ could have been only a foot or two wide.” In the deed from the petitioner to her brother the easterly and northerly boundaries of the land conveyed are described as running “ Northerly on west line of . . . Sewall Street to the southerly bank of a brook;
The judge found that the boundary line between the land which the petitioner seeks to register and the land of the respondents runs along the top of the steep slope of the south side of the ravine, and ordered a decree accordingly. The respondents contend that the boundary line runs along the southerly edge of the stream at the bottom of the ravine. The case, therefore, turns upon the meaning of the words “ Southerly bank,” used in the deed, as applied to the “ brook ” which, as the judge found, “ formerly ran westward ” at the bottom of a “ ravine running east and west ” lying “ between these two properties.”
A question of evidence must be disposed of at the outset. The petitioner, her husband and the draftsman who drew the deed, were permitted to testify that in a conversation at the office of the draftsman, when they were present, with the petitioner’s brother and his wife, who have died since, the petitioner told the draftsman “ she had sold her brother some land on the south side of her property, extending to the top of the bank,” the draftsman “ inquired if she. intended to convey to the brook. She replied in the negative, saying she intended to retain the bank as she might want to fence in both banks and keep some ducks along the brook. The grantee assented to this declaration of intention, and acting on such instructions . . . [the draftsman] drew the deed.” The respondents excepted to the admission of this testimony.
The evidence was admitted rightly if the deed from the petitioner to her brother, when applied to the land, was ambiguous with respect to the boundary line in question. Sargent v. Adams, 3 Gray, 72, 78-79. Chester Emery Co. v. Lucas, 112 Mass. 424, 434. Miles v. Barrows, 122 Mass. 579, 581. Haskell v. Friend, 196 Mass. 198, 203. Temple v. Benson, 213 Mass. 128, 134. The judge ruled, in substance, that there was such an ambiguity as to the meaning of the word “ bank in the description of the boundary line. He found that “ it would be hard for a stranger to
There was no error -in the ruling that this deed, as applied to the land, was ambiguous. A grant of land bounded by the bank of a stream ordinarily excludes the bed of the stream (Hatch v. Dwight, 17 Mass. 288, 298), and, like boundaries by the “ shore,” “ beach ” or “ flats ” (see Boston v. Richardson, 13 Allen, 146, 154, 155; Haskell v. Friend, 196 Mass. 198, 200-201, and cases cited; see also eases collected in Note to Commonwealth v. Roxbury, 9 Gray, 451, 503, 524-525), excludes the bank of the stream, if such bank has any width apart from the bed of the stream, though a different meaning “ may be shown by ¿ consideration of the whole instrument, and of monuments referred to therein.” Hathaway v. Wilson, 123 Mass. 359, 361. Haskell v. Friend, supra. The decisions in this Commonwealth do not disclose that the word “ bank ” has any technical or “ usual ” meaning, though, by analogy to the words “ shore,” “ beach ” and “ flats ” (see Storer v. Freeman, 6 Mass. 435, 439; Niles v. Patch, 13 Gray, 254, 257; Litchfield v. Ferguson, 141 Mass. 97), it may be that a boundary by the bank of a stream
With the evidence of the conversation at the draftsman's office before him, the judge clearly was warranted in finding that the boundary line between the land sought to be registered and the respondents’ land adjoining it on the south was at the top of the slope on the south side of the ravine. His finding, therefore, stands. G. L. c. 185, § 15. Bessey v. Ollman, 242 Mass. 89, 91. Bucella v. Agrippino, 257 Mass. 483, 486.
Order for decree affirmed.