276 Mass. 153 | Mass. | 1931
This is a petition for registration of title to land. The respondent asserts easements to a landing place on tidewater and a right of way thereto appurtenant to land owned by it by virtue of an indenture, made in 1796 and duly recorded, between the predecessors in title of the parties to this petition. In June, 1928, the petitioner filed in the Land Court a petition against the respondent alleging that it was the owner of the premises described in the present petition, and praying that the validity of the respondent’s claim to a landing place and right of way thereto over said premises under the indenture of 1796 be determined and that, if such encumbrances be found to exist, their nature and extent be defined, as authorized by G. L. c. 240, § 11. Pursuant to that petition a decision was rendered whereby it was ruled that the court was strictly limited to construing the indenture of 1796 as of its date, without regard to subsequent acts which might in other actions be found to constitute extinguishment of any easement thereby created, and then found (1) that the petitioner had good record title to the premises described in its petition and was in possession, (2) that easement of landing place and right of way thereto on land of the petitioner, appurtenant to land of the respondent, was created by the indenture, and (3) that the nature and extent of such easement, not having been theretofore specified, were set out and defined. There was included in that decision a statement that, for the purpose of avoiding a second trial on the facts, provided the views of the trial judge be found on appeal to be erroneous and because the parties had tried the case on the theory that events subsequent to the date of the indenture might be considered, a finding was made that the easement in question had not been lost by complete interruption and obstruction on the part of the petitioner and its predecessors in title as owners of the servient estate. It was added that this “finding, however, is strictly limited to the purposes of this case, when and if it should ever become material and is not to be considered as res
The first issue in the case at bar is whether the question of extinguishment of the easement appurtenant to the land of the respondent under the indenture of 1796 has been tried in the earlier proceeding between these parties, decided adversely to the petitioner and become res judicata. The decision of this issue depends in turn upon the subject matter brought before the court in the earlier proceeding and the scope of the issues there presented for decision and the precise extent of the decision made. That earlier proceeding was a petition under G. L. c. 240, § 11. So far as here material its words are: “If the title to land appears of record to be affected by a possible condition, restriction, reservation, stipulation or agreement ... a person having a freehold estate ... in said land . . . may file a petition . . . in the land court to determine the validity, or define the nature and extent, of such possible condition or other encumbrance . . . .” Concerning the purpose of these statutory words and the nature of the issues open under them, it was said, with respect to a contention that there might be inquiry into prescription as affecting the terms of a deed, in Crocker v. Cotting, 181 Mass. 146, at page 153: “Titles affected by prescriptive rights are excluded by the words of the statute, and are not we think included within its intent, — the idea being, it seems to us, to enable parties to obtain the construction of the court in regard to questions arising under written instruments and not to determine matters in pais.” This sentence was quoted with approval in McArthur v.
The trial judge did not undertake to decide the question of extinguishment of the easement by prescription except for the purpose of avoiding a second trial in the event that his views on the law as to the limits of the inquiry open in that earlier proceeding were found on appeal to be erroneous. That event has never happened. His views on the law were never reviewed on appeal, because no appeal was taken from that decree. His views on the law were right and' not erroneous. Hence his alternative decision on the question of prescription has never become operative because the circumstances under which it was to become effective have never come into existence. Therefore, there is no ground for the application of res judicata.
The second issue raised is whether the finding that the easement of the respondent had been extinguished by adverse possession was warranted. The contention of the respondent in essence is that, since the easement was general and was not located or defined on the face of the earth until the decree in the earlier proceeding, the possession of the petitioner as the servient tenant could not become adverse until after the entry, of that decree in 1929. Reliance is placed upon cases like Arnold v. Stevens, 24 Pick. 106, Smith v. Langewald, 140 Mass. 205, and Butterfield v. Reed, 160 Mass. 361. The principle established by those decisions is that occupation of land by the servient tenant not irreconcilable with the rights of the dominant tenant is not deemed to be adverse and therefore does not extinguish such rights.
Exceptions overruled.