179 Mass. 325 | Mass. | 1901
This is a petition under St. 1889, c. 442, to determine the nature and extent of the rights of way claimed by the respondents and reserved to them by deed in and over a private way called Townsend Place which runs easterly and
One question and the principal one in the case is whether the petitioners as the owners of an easement in the way have such a title as will enable them to maintain this petition. The statute provides that, “ When the title to land appears of record to be affected by a possible condition, restriction, reservation, stipulation or agreement made or imposed more than thirty years prior to the commencement of the proceedings hereinafter provided for, any person having a freehold estate, vested or contingent, in possession, reversion or remainder, in said land, or in any undivided or any aliquot part thereof, or any interest therein which may eventually become a freehold estate, and any person who has conveyed such estate or any such interest therein with covenants of title or warranty, may file a petition in the supreme judicial court for the purpose of determining the validity or defining the nature and extent of such possible condition, or other incumbrance, against any person who might be entitled in any event to claim to set up the same or to enforce or avail himself thereof.’’ The petitioners contend that as owners of an easement in fee in the way they are possessed of a freehold estate in land which may be affected by reservations or restrictions or stipulations in the deeds under which the respondents claim and that therefore they are entitled to maintain this petition. But we think it is plain that the statute makes an interest as owner in the land that is affected, or a liability which may arise from having conveyed such interest with covenants of title or warranty the basis of the right to bring a petition under it, and not the ownership of an easement in such land. It is “ when the title to land ” may be affected by a possible restriction, etc. that a petition may be proper. And it is “ any person having a freehold estate, vested or contingent, in possession, reversion or remainder, in said land, or in any undivided or any aliquot part
There is no provision in the Land Registration Act for an application by the owner of an easement for the registration of his title, (St. 1898, c. 562, § 19,) and, so far as we know, except in the cases above referred to, there is no provision for a petition by the owner of an easement to have his rights determined. It seems to us, therefore, that the statute was not intended to afford a remedy by which owners of easements in the same land could have the nature and extent of their rights settled, and should not be so construed.
The petitioners further contend that they have a right to maintain their petition as the owners in fee to the centre of so much of the way as bounds their premises on the west and also as the owners in fee of a piece about seven feet square of that portion of Townsend Place on which the respondents’ premises abut lying on the opposite side of the way and easterly of the respondents’ premises. But we think that the petition does not properly set out any such claim. The allegations are that the petitioners are the owners in fee of certain lots of land situated on Townsend Place “ with the buildings thereon, together with a right of way and of drainage in, upon, and over said Townsend Place as . . . appurtenant to said lands ” ; that the respondents claim as trustees under the will of one
We think that the demurrer was rightly sustained and the bill was rightly dismissed.
Bill dismissed.