236 Mass. 238 | Mass. | 1920
This is a petition to register the title to a tract of land in Swampscott. The petitioner contends that there is appurtenant to his land a right of way over the respondent’s land. Each party derives title from a common grantor, hereinafter called the Palmer Estate, who, prior to 1910, used the entire tract, including the land of the petitioner and of the respondent, as a pasture. The petitioner’s lot was conveyed by the Palmer estate to one Anderson, the deed describing it as bounded by Humphrey Street and northerly by “a proposed new street to be called ‘Range Road;’” and excluding from the conveyance a portion of the land on the corner of Humphrey Street and Range Road and referring to a plan “to be recorded herewith,” showing the land to be bounded by the proposed street. The deed then provided: “The grantee is given no rights in the projected street to be called ‘Range Road’ Northwesterly of the Northwesterly lot line extended. The width of Range Road and the time when it is to be built is at the option of the grantors. There shall be no inference from this deed that when Range Road is constructed or ac
The question before us is the construction of the deed from the Palmer estate to Anderson and the determination of the intention of the parties to the transaction. Regan v. Boston Gas Light Co. 137 Mass. 37, 43. Crocker v. Cutting, 181 Mass. 146, 151. Considering both the deed and the plan, was the grantee given the right of way over the adjoining land, as shown by the plan locating the proposed street? Or, was the grantee given the right to use the street only as, and when, it should be built by the grantors? The lot conveyed was a part of a large pasture. The land was below the level of the street and no way, as shown on the plan, was laid out or constructed, or was in use at the time; it did not exist except upon the plan. As the plan was a part of the contract, if the deed by its language had simply bounded the lot by the proposed street as set out on the plan, the petitioner could contend that the right of way was appurtenant to his land. Ralph v. Clifford, 224 Mass. 58. Lagorio v. Lewenberg, 226 Mass. 464. See O’Linda v. Lothrop, 21 Pick. 292. But the deed by its terms limited and defined the rights of the grantee. If the way should be built by the grantors he was to have no right to use it beyond the depth of the lot. The entire fee of the land was to remain in the grantors. The grantee had no interest in it, either as it then was or as it might be if a street were constructed, except the right to use it as a way. The width of the street was to be in the discretion of the grantors, and finally, the time when it was to be
In the opinion of a majority of the court the exceptions are overruled.
So ordered.