265 Mass. 56 | Mass. | 1928
This is a bill in equity wherein the plaintiff seeks to have removed a fence, erected by the defendants about six inches from the westerly boundary of the plaintiff’s land. In their answer the defendants admit they erected the fence described in paragraph six of the bill of complaint, but say said fence was erected upon premises belonging to them. The cause was sent to a master “to hear the parties and their evidence and report his findings to the court, together with such facts and questions of law as either party may request.” No exception was taken to the master’s report and it was confirmed by an interlocutory decree.
The appeal presents the single question, whether on the master’s findings relief should have been granted the plaintiff. American Stay Co. v. Delaney, 211 Mass. 229. Grossman v. Lewis, 226 Mass. 163. Raynes v. Sharp, 238 Mass. 20, 24. From the findings it appears that, under date of April 29, 1909, James C. Hall and Edward Hall conveyed a certain tract of land on the northerly side of Summer Street, in Pittsfield, Massachusetts, to George C. Leidhold; this property had a frontage on Summer Street of one hundred and sixty-four and seven-tenths feet and a depth of one hundred and forty-eight and five-tenths feet. By a series of conveyances George C. Leidhold conveyed portions of the land to various grantees. In this way the original tract was divided into five parcels, three having a forty-foot frontage on Summer Street and two situated in the rear.
The first conveyance was to Henrietta C. Biley, by deed dated April 8, 1910. By this deed title to the westerly lot fronting on Summer Street was passed. In it and in the mesne conveyance which ultimately vested the title to this lot in Luigi Buberto and wife no mention is made of any right of way either as an appurtenance or as a boundary. The front fine of this lot on the northerly fine of Summer Street ran easterly forty feet from the southeast corner of land of one Charles C. Wright.
On May 11,. 1910, Leidhold mortgaged the central front lot, which is hereafter referred to as land conveyed by Max Baker to Israel Boxer on May 27, 1927, to the Berkshire County Savings Bank. This mortgage contains the first mention of any right of way. Its language is as follows: “Together with a right of way for all the usual purposes and to be enjoyed in common with the grantor, his heirs and assigns in, over and upon three strips of land, the first being twenty (20) feet in width east and west and extending northerly from Summer Street to premises heretofore mortgaged by the grantor to the grantee, the easterly fine of said right of way being the westerly fine of the parcel herein conveyed;
On May 1, 1911, Leidhold conveyed this lot to Joseph Ressler; it is described in the deed as follows: “Beginning at a point in said northerly line of Summer Street which is sixty (60) feet easterly from the southeast corner of land now or formerly of one Wright; thence running northerly in a line parallel with the easterly line of land now or formerly of Wright ninety (90) feet; thence easterly in a line parallel with the northerly line of Summer Street aforesaid forty (40) feet; thence southerly in a line parallel with the first course described ninety (90) feet to said northerly line of Summer Street; thence westerly in said northerly fine of Summer Street forty (40) feet to the place of beginning. Together with a right of way to said grantee his heirs and assigns forever in common with others for all the usual purposes and at all times over two strips of land twenty (20) feet in width running northerly from said Summer Street one hundred (100) feet, the southeast corner of the easterly right of way, being forty (40) feet westerly from the southeast corner of the grantor’s premises and the southwest corner of the westerly right of way being forty (40) feet easterly from the grantor’s southwest corner and also over a strip of land ten (10) feet wide connecting the two above named strips at their northerly end, said last named strip being ten (10) feet in width north and south and its northerly fine being the northerly fine of said two above named rights of way extended easterly and westerly to meet each other.”
Under date of April 24, 1911, Leidhold conveyed the easterly rear lot, now owned by Ludger Gauvreau to Benson M. Lathrop and Maud Lathrop. All the deeds affecting this particular parcel contain the following reference to said right
By deed dated June 14, 1911, Leidhold conveyed the northwesterly corner of the tract to Joseph and Celina Letourneaue, “Together with a right of way to said grantees, their heirs and assigns forever in common with others, for all the usual purposes and at all times over three (3) strips of land to and from the granted premises to Summer Street, which rights of way are fully described in my deed to Joseph H. Ressler, dated May 1, 1911, recorded in Book 361, Page 597.” This parcel was later reconveyed to Leidhold and he conveyed it on July 24,1922, to Roscoe H. Blanchard and his wife, May Blanchard, the defendants in this bill of complaint. The deed to Blanchard and his wife described a right of way in the same language as is used in the deeds of Leidhold to Ressler and to Lathrop.
Leidhold, on May 29, 1911, conveyed to Joseph and Celina Letourneaue the most easterly forty feet of the Hall property, “To have and to hold the granted premises with all the privileges and appurtenances therein belonging to said Letourneaue’s, their heirs and assigns.” By deed dated March 30, 1915, the Letourneaues conveyed this property to Eda E. F. and Freída Leidhold. They in turn ón January 12, 1916, conveyed the parcel to George C. Leidhold, “To have and to hold the granted premises with all the privileges and appurtenances thereto belonging to the said George C. Leidhold, his heirs and assigns.” Leidhold conveyed this parcel to Harriet B. McMahon, the plaintiff, by deed dated Sep
On June 8, 1927, Leidhold conveyed by quitclaim deed “to Roscoe Blanchard et al.” the following property; “This property on Summer Street is known as the Hall property afterwards known as Leidhold property, so called, bounded on the east by the property of Ade E. Adams and on the west by property formerly owned by Charles H. Wright, subject to all hens, assessments, rights and titles in force on this property. Meaning and intending hereby to convey all our rights, title and interest if any, in the above described property.” The master finds that “the easterly fine of the easterly right of way begins at the southwesterly corner of the property now owned by the petitioner.” He states, “I ana unable to find whether or not the easterly fine of the easterly right of way and the westerly fine of the petitioner’s property adjoin each other.” He further finds “as a fact that the easterly right of way has been quite generally used by the trademen for the purpose of leaving various commodities with the tenants who occupy the petitioners property as well as the tenants of all abutting owners. This condition existed before the petitioner purchased the property and all during the time the premises were occupied by Mr. Leidhold . . . Mr. Leidhold used the said right of way for the purpose of getting to his barn which formerly stood on the Blanchard property and ... as owner of the property, used all the rights of way generally for the purposes consistent with his ownership of the entire tract . . . George C. Leidhold lived on the premises now owned by the petitioner between the following dates: January 12, 1916 to January 4, 1920.” He states that he is “unable to find what particular part of the land between the easterly line of the Boxer property and the westerly fine of the McMahon property has been so used by Leidhold and the trademen.”
The case presents two problems, (1) the exact location of the easterly passage and (2) whether there is any easement appurtenant to the land of the plaintiff over the right of way.
Leidhold retained the title to the land over which he had granted the rights of way described in the deeds above referred to. The deed to the defendants conveyed to them all the right, title and interest which Leidhold had when the deed was delivered. Leidhold as the owner of the fee of the last parcel sold had the right to use the ways granted by him in connection with that parcel because he owned the fee in the land, not because the passageways were appurtenant to the parcel retained by him. The law is well settled that land cannot be appurtenant to land as such, because a corporeal thing cannot be appurtenant to another corporeal thing. The deed of Leidhold to Harriet B. McMahon, dated September 4, 1920, in statutory short form described the premises conveyed as follows: “Beginning at the southwest corner of land supposed to belong to one Adams, formerly of one Gamwell, and running thence northerly in the westerly line of said land ninety-five (95) feet; thence westerly in a line parallel with the said northerly line of Summer Street forty (40) feet; thence southerly in a fine parallel with the first mentioned course ninety-five (95) feet to the said northerly fine of Summer Street; thence easterly in said northerly line of Summer Street forty (40) feet to the place of beginning.” In his report the master says: “I am unable to find in any of the deeds relating to this parcel any mention of a right of way either as an appurtenance or as a boundary.”
The easterly passageway was a way of convenience and not of necessity to the parcel conveyed to the plaintiff. Other than the fact that the grantor used the passage in connection with his use of the parcel retained by him and subsequently conveyed to the plaintiff, there are no facts which show a purpose of the grantor to grant the plaintiff a right of way
Decree affirmed with costs.