| Mass. | Jun 25, 1918
This is a petition for the registration of title to a tract of land in Medford containing about a quarter of an acre. It hereafter is referred to as the lot. It is surrounded by land owned by others, and does not abut on any public or private way. There is no easement of access to it from any public or private way discoverable on the records. The petitioner contends that there is appurtenant to it (1) a right of way over land of the respondent Twombly, or failing in that, (2) an easement of necessity over land, of the respondents Morrison and Berry. The westerly boundary of the lot is about four hundred feet easterly from Pulton Street, a public way, from which it is separated by land of the respondents Morrison and Berry. The easterly boundary of the lot is distant about two hundred and twenty-two feet westerly from Fellsway West, another public way, from which it is separated in part by land of the respondent Twombly. In 1893, the lot and the land now owned by Morrison and Berry were owned by George G. Fifield as one tract. In that year he conveyed the lot to James H. Fitzpatrick by warranty deed free from incumbrances.
A witness called by Morrison and Berry testified without objection or exception that he was present at the conversation between Fifield and Fitzpatrick at the time of the purchase of the lot, that the latter offered $100 for the lot and would not give any more, and that Fifield replied that he could have it provided “he would use his right of way on his place,” meaning that of Mrs. Fitzpatrick, and that “under no other condition would he [Fifield]] sell it for a hundred dollars/’ and that the lot was sold “•cheap” for that reason, and that Fifield claimed no right of way over the land or driveway of Mrs. Fitzpatrick.
The main question argued by the petitioner is whether the testimony as to the conversation between Fifield and Fitzpatrick, to the effect that no right of way over other land of the former should attach to the lot conveyed to the latter, was competent. That question, however, is not open to the petitioner. The testimony was admitted without objection. No motion was made to strike it out or to narrow its force to the single point to which, as is now argued by the petitioner, it was competent. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577" court="Mass." date_filed="1900-10-17" href="https://app.midpage.ai/document/produce-exchange-trust-co-v-bieberbach-6427198?utm_source=webapp" opinion_id="6427198">176 Mass. 577, .581. The judge did not undertake on his own account to order the evidence stricken out. It was not admitted de bene. Clarke v. Fall River, 219 Mass. 580" court="Mass." date_filed="1914-12-31" href="https://app.midpage.ai/document/clarke-v-city-of-fall-river-6432992?utm_source=webapp" opinion_id="6432992">219 Mass. 580, 586. Ruling upon the competency was not postponed by the judge until a future stage of the trial. N. J. Magnan Co. v. Fuller, 222 Mass. 530" court="Mass." date_filed="1916-02-08" href="https://app.midpage.ai/document/n-j-magnan-co-v-fuller-6433390?utm_source=webapp" opinion_id="6433390">222 Mass. 530, 535. The testimony was received in evidence unqualifiedly, without reservation or exception. It is not
At the close of all the evidence it appears that the judge ruled that the paroi evidence that there should be no right of way by necessity was competent, and that the petitioner excepted to that along with other rulings. But that ruling and exception did not affect the evidence nor open anew its competency. The ruling was impertinent to any matter at that time before the court. The testimony, being already in without objection, was entitled to receive whatever may have been its probative effect. No question of law respecting its admissibility is open. Hubbard v. Allyn, 200 Mass. 166" court="Mass." date_filed="1908-11-24" href="https://app.midpage.ai/document/hubbard-v-allyn-6430415?utm_source=webapp" opinion_id="6430415">200 Mass. 166, 171. Damon v. Carrol, 163 Mass. 404" court="Mass." date_filed="1895-04-05" href="https://app.midpage.ai/document/damon-v-carrol-6425254?utm_source=webapp" opinion_id="6425254">163 Mass. 404, 408. Diaz v. United States, 223 U. S. 442, 450. The judge, by undertaking to make a ruling of law touching a matter not then relevant to any question pending before him, cannot lay the foundation for a good exception or give vitality to a thing which has no life. Boston Bar Association v. Casey, 227 Mass. 46" court="Mass." date_filed="1917-05-24" href="https://app.midpage.ai/document/bar-assn-v-casey-6433985?utm_source=webapp" opinion_id="6433985">227 Mass. 46, 51, and cases there collected. It is the plain practice in trials at common law, and in harmony with its spirit as it has been developed, that questions of law as to the admissibility of evidence must be raised as the evidence is presented and not at some later period of the trial at the volition of either party. It is only by adherence to this rule that confusion and jeopardy of fundamental rights of parties can be avoided.
This is not a case where the evidence was offered to control or vary an instrument in writing, as to which see Glackin v. Bennett, 226 Mass. 316" court="Mass." date_filed="1917-03-10" href="https://app.midpage.ai/document/glackin-v-bennett-6433912?utm_source=webapp" opinion_id="6433912">226 Mass. 316, 320, and cases there collected. The testimony related to the intent of the parties to the deed respecting a way of necessity, which was the very matter in issue. Although ordinarily gathered from circumstances and shown by extrinsic
It follows that each party now may insist upon his rights respecting that evidence, and that the case be decided upon the record as presented. It becomes unnecessary to discuss the admissibility of the evidence, as to which see Buss v. Dyer, 125 Mass. 287" court="Mass." date_filed="1878-08-30" href="https://app.midpage.ai/document/buss-v-dyer-6419354?utm_source=webapp" opinion_id="6419354">125 Mass. 287, 291; Leonard v. Leonard, 2 Allen, 543, 545; Cook v. Babcock, 7 Cush. 526; Simanovick v. Wood, 145 Mass. 180" court="Mass." date_filed="1887-10-20" href="https://app.midpage.ai/document/simanovich-v-wood-6422533?utm_source=webapp" opinion_id="6422533">145 Mass. 180; Lebus v. Boston, 107 Ky. 98" court="Ky. Ct. App." date_filed="1899-06-07" href="https://app.midpage.ai/document/lebus-v-boston-7134257?utm_source=webapp" opinion_id="7134257">107 Ky. 98; S. C. 47 L. R. A. 79.
A right of way of necessity over land of the grantor is implied by the law as a part of the grant when the granted premises are otherwise inaccessible, because that is presumed to be the intent of the parties. The way is created not by the necessity of the grantee but as a deduction as to the intention of the parties from the instrument of grant, the circumstances under which it was executed and all the material conditions known to the parties at the time. The rule has its basis in a construction of the deed with reference to all the facts within the knowledge of the parties respecting the subject of the grant, to the end that their assumed design may be carried ipto effect. It is founded on the idea that it is the purpose of the parties that the conveyance shall be beneficial to the grantee. “It is not the necessity which creates the right of way, but the fair construction of the act of the parties.” “Necessity is only a circumstance resorted to for the purpose of showing the intent of the parties.” Nichols v. Luce, 24 Pick. 102, 103, 104. Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402" court="Mass." date_filed="1912-01-02" href="https://app.midpage.ai/document/gorton-pew-fisheries-co-v-tolman-6431626?utm_source=webapp" opinion_id="6431626">210 Mass. 402, 411. Richards v. Attleborough Branch Railroad, 153 Mass. 120" court="Mass." date_filed="1891-01-12" href="https://app.midpage.ai/document/richards-v-attleborough-branch-railroad-6423691?utm_source=webapp" opinion_id="6423691">153 Mass. 120, 122. It is, however, a pure presumption raised by the law. The right of way does not pass as appurtenant, because there can be no way appurtenant to one part of an entire tract over another part of the same tract when the whole parcel is in single ownership in fee. It is a strong thing to raise a presumption of a grant in addition to the premises described in the absence of anything to that effect in the express words of the deed. Such a presumption ought to be and is construed with strictness. There is no reason in law or ethics why parties may not convey land without direct means of access, if they desire to do so. When a purchaser has voluntarily purchased land knowing its situation fully and that “he had no access to the back part of it, but over the land of another, it was his own
There are circumstances in the case at bar which apart from the oral testimony give color to the contention that the parties did not intend a right of way by necessity. But, however that may be, the actüal intention of the parties as disclosed by the oral testimony makes it plain that there was express understanding that there should be no right of way over other land of the grantor. Hence there is no right of way to the lot over land of Morrison and Berry.
It is manifest that there is no right of way appurtenant to the lot over the land of Twombly.. There was no such right of way by grant. No such way has been used in connection with the lot for a sufficient period of time to become established by prescription.
Exceptions overruled.