189 Mass. 145 | Mass. | 1905
The judge “ruled and found as matter of law” that upon the facts stated in the report the respondent had no right of way over any portion of the petitioner’s land formerly called Front Street. We understand this to be a ruling on the question as one of law, and not a finding of fact. At the argument before us the respondent waived any claim to any easement in Front Street west of the westerly line of its premises, but contended that it has a right of way over that part of Front Street which extends from said westerly line easterly to Locust Street. The only question, therefore, is whether as to this part of the strip of land called Front Street (which for the sake of brevity will be called the easterly part) the ruling was correct.
The report contains a detailed statement of the conveyances affecting the lands in question, made during the last three quarters of a century, and at first sight the facts seem somewhat complicated, but the case of the respondent has been so clearly and logically set forth in its brief that the task of decision has been greatly lightened.
In 1857, the Atlantic Wharf Companyconveyed to one Upham lot 4 on the plan known in this case as Exhibit E. The deed described the land by reference to this plan as “ Lot 4 between Second and Front Streets and bounded on both of said streets.” Upon the plan Front Street is shown as extending from Locust Street westerly to a point some distance west of the present westerly line of the respondent’s land. Lot 4, of which the respondent’s land is a part, is upon the north side of Front Street. Since the lot was bounded on this street there was created in favor of it a right of way over the street as shown on the plan, not only as to that part against which the lot abutted but also over the rest of the street so far as the grantor had power to create such a right. And that is so even if the grantor had not the power to create
It becomes necessary therefore to look into the nature and extent of the interest which at the time of this deed the grantor,, the Atlantic Wharf Company, had in Front Street. It acquired by the deed from Sears, Coe and Upham the fee in the south half of the street from Locust Street to the east line of the respondent’s land, and in the whole width of the street so far as it abutted upon this land. To this extent therefore the deed gave as against the grantor and its assigns a right of way appurtenant to the respondent’s land over Front Street to Locust Street. As to the northerly half of the street extending from the easterly line of the respondent’s land to Locust Street, the respondent contends that it has a right of way by reason of other conveyances mentioned in the report, but the facts bearing upon this contention are somewhat meagrely set forth in the report, and, as the case must go back to the trial court and this question may become immaterial at the second hearing by reason of the finding of the court upon the question of abandonment or otherwise, it is not necessary now to pass upon it. The court which finally passes upon it should have a copy of the detailed description in the releases which were given by Mrs. Norris of the boarding house lots and the lot immediately adjoining upon the west, so that it may be seen whether or not the releases extend to the centre of Front Street; and should have also a more detailed statement of the transaction concerning the indenture between Sears and the owners of the Rayner lots.
Whatever may be the case as to this part of Front Street, it is clear, as stated above, that in any event the Atlantic Wharf Company had power to grant the easement in the southerly half and part of the northerly half of Front Street, and its deed to Upham had that effect. Front Street as shown upon the plan is forty feet wide. The right of way therefore extended
The mesne conveyances by which Upham’s title in the premises of the respondent was acquired by the latter were all apt and sufficient to carry any easement that Upham had acquired in Front Street. In 1871 his heirs conveyed the whole of lot 4 to Munroe, who conveyed it in 1872 to the Union Stone Company. In 1885 this latter company carved out of lot 4 and conveyed to Charles W. Howland the land now owned by the respondent. The parcel is irregular in shape. The boundaries in the deed so far as material are as follows: “ thence running southwesterly on said land of said Union Stone Company 162.60 feet to the middle line of Front Street; thence running southeasterly on said middle line of Front Street 107.50 feet; thence running northeasterly ... to said Second Street. . . . Being Lot A on plan of land,” etc. Upon the plan no sign of Front Street is shown. The passageway named in the deed is upon the other side of the parcel, and leads to Second Street. This passageway is shown upon the plan and is marked “Passageway.” It is contended by the petitioner that since the land conveyed is not described as bounding “on” Front Street, but as running to the “ middle line ” and thence along this line, the rules relating to the creation of easements in streets are not applicable ; but there is nothing in this contention. The language of the deed was sufficient to create an easement and therefore to transfer one, and by it the grantee Howland acquired the right of way made appurtenant to this parcel as a part of lot 4 by the deed from the Atlantic Wharf Company to Upham. In 1896 Howland conveyed to Joyce and others, whose title was conveyed to Murphy, who conveyed to the respondent. Each of these last three deeds contained language apt to transfer the easement if it existed. The respondent’s record title to the easement in Front Street, to the extent above described, is thus made clear.
The only question remaining is whether the easement has been extinguished by any acts in pais, no extinguishment by any written instrument of record being alleged. The easement having been acquired by grant could not be lost by mere nonuser. Butterfield v. Reed, 160 Mass. 361, and cases therein cited.
We are of opinion further that the erection of the building by Joyce, Curran and Walsh, the respondent’s predecessors in title, over that part of Front Street in which they owned the fee, was not as matter of law an abandonment of their easement over the rest of the easterly part of Front Street. Abandonment is a question of intent. In some cases, where acts of the owner of the dominant estate have seemed to be entirely inconsistent with an intention to make any further use of the easement, especially where a change in circumstances has rendered the easement no longer of any benefit, such acts have been regarded as showing conclusively as matter of law an intention to abandon, and the consequent extinguishment of the easement. Corning v. Gould, 16 Wend. 581. Canny v. Andrews, 123 Mass. 155. Dillman v. Hoffman, 38 Wis. 559. Since abandonment however is a question of intent, any act relied upon either must be accompanied by evidence of intention, or be in its nature such as necessarily to show an intention, to abandon. As a rule mere encroachments upon a common right of way do not of themselves necessarily show an intention to abandon the way, and in most of such cases the question of abandonment is one of fact and not of law. In King v. Murphy, 140 Mass. 254, the general rule is thus stated by Morton, C. J.: “ Mere non-user, even for twenty years, will not conclusively show an abandonment of a
We are of opinion that the encroachments made on Front Street west of the petitioner’s land, or in front of this land, do not show as matter of law an intention to abandon the right of way over the rest of the street. These acts, taken in connection with other facts, such for instance as the creation by the deed from the Union Stone Company to Howland of a right of way over a strip of land adjoining the respondent’s premises on the northeast to Second Street, and with any other competent evidence, are to be considered as bearing upon the question whether in fact there was an intention to abandon.
In view of the finding of the trial court that the petitioner’s building across Front Street was erected under such circumstances that no estoppel was created against the owners of the respondent’s land, we cannot say that the respondent is thereby estopped from asserting its right of way.
The ruling of the trial court that upon the facts stated in the report, as matter of law, the respondent has no right of way over any portion of Front Street was erroneous, and the order directing a decree for the petitioner should be revoked. The case is to stand for further hearing only upon the questions whether the respondent has a' right of way over any portion of Front Street between the westerly line of its land and Locust Street, and if so, over what portion; and it is
So ordered.
