| Mass. | Dec 28, 1875
The only question necessary here to be determined is, what was the legal effect of the deed of Clapp to Amos Binney in 1812, so far as it concerns the conveyance of the easterly half of the passage way. If it failed to convey this, the plaintiff has shown title to it, and may maintain this action, the defendant having done acts therein not authorized by a mere right of passage, which it is conceded he has. If, on the other hand, the easterly half of the passage way was thus conveyed, it is unimportant whether it has been since conveyed by the heirs of Amos Binney, to whom the estate descended, and under whom the defendant claims, as the plaintiff claims no rights under them.
The estate conveyed to Binney,was bounded “westerly on a passage way ” for the distance of thirty-four feet and ten inches and it is a general rule of construction that where there is a
The plaintiff contends that the intent of the parties that the lot granted to Binney should extend only to the side and not to the centre of the passage way, fully appears; that the careful and minute description in feet and inches of a line so short as that upon Elm Street, which was the front line, precludes the idea that there could have been any mistake, or that it could have been intended to convey to the centre of the way. It is true that the general rule, that monuments govern rather than courses and distances, must yield, when an adherence would lead to. a result plainly absurd, or when the intent to exclude them appears. Davis v. Rainsford, 17 Mass. 207" court="Mass." date_filed="1821-03-15" href="https://app.midpage.ai/document/davis-v-rainsford-6404969?utm_source=webapp" opinion_id="6404969">17 Mass. 207. Brainard v. Boston & New York Central Railroad, 12 Gray, 407. Wilson v. Hildreth, 118 Mass. 578" court="Mass." date_filed="1875-10-23" href="https://app.midpage.ai/document/wilson-v-hildreth-6418265?utm_source=webapp" opinion_id="6418265">118 Mass. 578. But no such case is here presented. Even this front line, exclusive of the passage way, when a plan (the accuracy of which has not been questioned) is afterwards prepared, is shown to vary in length from that called for by the deed, while, if the length called for is given to the rear line, the description would at the rear include the half of the passage way which is claimed by the defendants to have been conveyed lO Binney; the deed giving seventeen feet five inches as the length of that line, while the rear line of the lot as surveyed has only a length of fifteen feet three inches, if the passage way be excluded.
Nor can the monument he disregarded on account of the grant of “ the free use and privilege of said passage way in common
The reservation of a right to use the well and pump on the granted land was of "course necessary, if the grantor desired to retain that privilege; but it cannot be deemed, as the plaintiff argues, that because he grants axfee in the land conveyed, retaining an easement therein, he therefore retains the fee in the passage, granting there only an easement. The well and pump are indeed spoken of as “ standing at the northwesterly corner of the above described land; ” but this would be a sufficiently accurate description of the locality of two such objects, if they stood within two feet of the corner, as they would do if the description included the half of the passage. From the nature of the objects, they could not be exactly at the angle which made the northwesterly corner.
Nor is it to be inferred, from the grant of all the right, title and interest which the grantor had in the small strip “ taken by the town to widen Elm Street ” from the north" end of the “ land above described,” that therefore his grant was to be limited by the side lines as they would be measured. This strip was not in his possession except subject to the purpose for which it had been taken by the town, and he sees fit therefore to describe it separately. ' But such a description would not be inconsistent with his having conveyed, on the side of the lot described, to the centre of the passage way.
The plaintiff has- sought to invoke the principle that where lines are laid down on a plan or map and referred to in a deed, the courses, distances and other particulars appearing on such plan are to be as much regarded as if they were expressly recited in the deed. Codman v. Evans, 1 Allen, 443. This has, however, no application. No such plan or map existed or was referred to, when the deed to Binney was made. Such a plan was indeed used and referred to when the Binney heirs, many years after conveyed to the defendant’s grantor; but, as before suggested, it
Much reliance has been placed upon the case of Codman v. Evans, ubi supra. Without discussing that case in detail, it may properly be said that there is here no such exclusion of the passage way as there appeared, nor a description of any of the lines such as was found of the southerly line of the lot there described, which necessarily must have been rejected if the grant of the lot there had been held to extend to the centre of the passage way.
Upon the whole case, the plaintiff has failed to show any intent, as expressed by the deed to Binney, or indicated by the localities, such as should take the construction of it out of the general rule, that the middle of the monument must be the boundary line.
Exceptions overruled.