175 Mass. 64 | Mass. | 1900
The parties are in dispute in regard to the location of" the boundary line between their adjacent lots. The plaintiff claims under a clause in the will of Joseph C. Parsons, as follows: “ I give, devise and bequeath to Charles B. Prescott of Holyoke the dwelling-house on the easterly side of Chestnut Street in said Holyoke now occupied by him, together with the lot of land upon which said dwelling is situated, said lot extending from land of H. P, Terry and Austin Ely northerly on said Chestnut Street, and on the centre line of an alley in the rear of said lot a distance of sixty-two and a half feet. He, the said Prescott, to pay all taxes and assessments upon said premises during his life, to keep said premises well insured' and to make all necessary repairs. To have and to hold the same with the appurtenances to him, the said Charles B. Prescott, during the term of his natural life. On his decease the remainder of said estate I give, bequeath and devise to my granddaughter, Kittie T. Prescott, to have and to hold the same to her, her heirs and assigns forever.” The defendant claims under the following language of the same will: “I also give, bequeath and devise to my said wife for and during her natural life, the dwelling-house in which I now reside and the lot on which it stands, together with all other buildings on said lot. On her death the remainder of said real estate described in this provision of the will, to wit: the land and buildings where I now reside, I give, bequeath and devise to my grandson, Joseph P. Prescott, to have and to hold the same to him, his heirs and assigns forever.” The widow of the testator has since deceased. The first wife of the plaintiff was the daughter of said Parsons, and the defendant is his grandson. A walk constructed of artificial stone runs from the street along the northerly side of the plaintiff’s house to a side door and to the back part of the house, in such a position- that the boundary line of the plain
One question presented by this bill is, whether the plaintiff has acquired by prescription any rights in the land northerly of the boundary described in the will." We think it is clear that he has not. Without considering the nature of his occupation since the decease of Parsons, which occurred in 1886, it is plain that previously his occupation was permissive, and that the legal relations between the parties were those of landlord and tenant. Parsons paid the taxes on the plaintiff’s house and lot, the plaintiff’s house was insured in Parsons’s name, a man in his service was accustomed to mow the grass on both lots, and there is nothing to indicate that the plaintiff made any adverse claim to the property.
We must therefore consider the legal effect of the devise under which the plaintiff claims. The lines of the lot are fixed by the language of the will. The plaintiff has an estate for life in the land within the designated boundaries. The first question is, whether the rights in the driveway and in the land between the driveway and the artificial stone walk passed as appurtenant to the plaintiff’s house and land.
Under the rule of law as it is stated in Salisbury v. Andrews, 19 Pick. 250, 253, Whitney v. Olney, 3 Mason, 280, 284, Johnson v. Jordan, 2 Met. 234, 240, and Philbrick v. Ewing, 97 Mass. 133,135, there is nothing to show any such close connection
The judge “ found from .the evidence that the defendant did not, in any way, interfere with the use of the path or walk shown on the plan, leading from the street' to the side or rear door of the house occupied by the plaintiff.” From the conduct of the defendant, and his testimony, he may have found that whether the plaintiff had a right to have the artificial stone walk remain there or not, there was no such danger that the defendant would interfere with his use of it as to call for a remedy by injunction. The bill of exceptions does not state on what ground the judge found for the defendant, and as it contains this specific finding on this part of the case, it is possible, if not probable, that the decision as to the walk was made without reference to the question of title, and was on the ground that the plaintiff had not shown any need of relief in equity. We therefore express no opinion in regard to the walk.
The case shows an informality in the proceedings. The' hearing is upon a bill of exceptions allowed by the judge. The exceptions show an order that the bill be dismissed with costs, the entry of a final decree, and an appeal. The allowance of
Exceptions overruled.