207 Mass. 174 | Mass. | 1911
This is a petition for the registration of title to certain flats in Quincy ; and the case is before us upon exceptions taken by the petitioner to the ruling of the Land Court that the passageway named in the deed from Jenkins to Jones “ was intended to be a way by water from the creek out to the river,” and to the order that “ the title to petitioner’s flats be registered 1 subject to a right in favor of the Phillips estate as recited in ’ ” that deed. The flats are shown upon a plan annexed to the bill
1. As to the ruling. One of the contentions of the petitioner is that the attempted grant was void because in law there is no such thing as a grant of way through tidal water. But this objection proceeds upon an entire misconception of the right granted. The phrase which calls for construction follows immediately the description of the land conveyed in fee and reads thus : “ together with a privilege or passage way from said Creek into Town River.”
Of the land conveyed by the deed the southern portion was upland bounded on the south by a highway, and the northern portion was flats adjoining the upland and bounded on the north by the centre of a creek. This creek was dry at low tide and therefore did not mark the limits of riparian ownership of the flats. Extending from the creek northerly to the low water mark of Town River, in which the tide ebbed and flowed, was a large extent of flats owned by Jenkins at the time of the delivery of his deed to Jones. By virtue of the colonial ordinance of 1647, Jenkins as such owner was vested with the title in fee, with full power to reclaim the flats by building upon them or inclosing them; but he held the fee subject to a general right of the public for navigation until his land was built upon or inclosed, and subject also to the restriction that, unless permitted by some public authority, it should not be built upon or inclosed in such manner as to cut off wholly the access of his neighbors to their houses or lands. Commonwealth v. Alger, 7 Cush. 53, 78. Davidson v. Boston & Maine Railroad, 3 Cush. 91,105. Henry v. Newbury
Under these circumstances what is the fair construction of the phrase “ together with a privilege or passage way from said Creek into Town River ” ? What did the parties mean ? It is to be assumed that they meant something, that the phrase was intended to confer upon the grantee a right which otherwise he would not have had.
There is nothing in the deed expressly limiting the right to any particular time or to any particular method of travel. The parties were thinking of a passageway from the land described in the deed to the low water mark of the river, — a passageway over land which by the operation of natural laws was bare or substantially bare during a considerable part of every twelve hours, and during the rest of the time was covered with water of varying depth, a part of the time capable of being navigated.
It is further urged that the attempted grant is void for indefiniteness. In support of this it is urged that the deed makes no express mention of the limits of the way, or of its precise location, or of the purposes for which it may be used, and that these deficiencies cannot be supplied by judicial construction. This contention however is untenable. By the aid of the circumstances the court can adjudge the uses intended by the parties; and when the limits or location of the way have not been determined by the parties by a use or otherwise (see Bannon v. Angier, 2 Allen, 128), then the rule is that in those respects the location shall be reasonable and what is reasonable may be judicially determined. The deed therefore conveyed a valid right, and this right was not a mere license, but was an easement appurtenant to the land conveyed by the deed.
The language of the deed is that the passage is from the creek, and it is suggested by the petitioner that the land conve)red did not include the creek and hence that the easement was not appurtenant to the land conveyed. But the northerly
It is next urged that even if there ever was a right of way through the water it has been extinguished, first, because the creek, i. e. the dominant tenement, has dried up, and second, because the premises are no longer used as a shipyard. But, as has been just stated, the dominant tenement is not the creek but the land conveyed by the deed; and while the fact that the dominant estate was used as a shipyard has a bearing upon whether a passageway by water was intended, the easement cannot. be held to be solely for the use of the land as a shipyard. And in the written opinion of the Land Court it appears that “in 1888 the respondent Phillips purchased the Jones tract [the, dominant estate] and has used it ever since in connection with his business as a diver, bringing in vessels and lighters at high water clear up to his upland, and anchoring and wintering them in the cove where at low water they are high and dry. Access to the river over the flats north of the old creek, which marks the northerly limits of his ownership, is necessary to his business.” It cannot be said that the easement has been extinguished. Nor does there appear to have been at any time an abandonment of the easement by non-user or otherwise.
But this right of passage must be fairly construed. In the absence of any controlling reason to the contrary, and in this case we see none, the passage must be by the straightest and most direct way. And the way by water cannot be such as a sailboat would take when beating against a head wind. Whether the passage be by land or water it must be over the same land, and within the same lines. Such is the general nature of the right granted by the deed. It is valid in law and still exists as an easement in favor of the land conveyed by the deed over the flats between that and Fore River. The exception to the ruling must be overruled.
2. As to the order for a decree. The order was that there should be a decree that “the title to the petitioner’s flats be registered ‘ subject to a right in favor of the Phillips estate as
Although the petitioner has argued before us that the attempted grant of the right of way, whether it be by land or water, was void for indefiniteness, it does not seem to have taken in the Land Court that sweeping position so far as respects the way by land. On the contrary, as appears from the written decision of that court, the petitioner argued “ that the way provided . . . was a way on foot and at low tide only; and that a passageway by water cannot be the subject of private grant.” The only thing really in dispute was whether there was a way by water; and this view of the attitude of the petitioner in the Land Court is supported by the grounds of the exceptions to the ruling as they are set forth in the bill of exceptions.
The order for a decree therefore is not to be interpreted as an order that the decree shall be as narrow as the ruling and refer only to the water way. Under these circumstances the ruling of the court that there was a way by water is to be regarded not as a statement of the whole nature of the easement, but merely as a ruling upon that feature of it which was in dispute.
It was simply an adjudication that by the deed in question a valid easement was created in favor of the land therein conveyed over the flats of the petitioner, and that the easement still exists as thus created. And except as thus adjudicated it left the details of the decree to the future action of the court. As thus interpreted the order was valid.
It would appear from the end of the last paragraph but one of the written opinion of the Land Court
Exceptions overruled.
The language referred to was as follows: “Just how this way or right can be exercised is not within the jurisdiction of this court, or the limits of this case.”