150 Mass. 262 | Mass. | 1889
This • is an action of tort for changing the grade of a way opposite the land occupied by the plaintiff, and thus making the way less convenient for his use. The defendant, who showed no right to do this, after a verdict was returned for the plaintiff, alleged exceptions to the refusal of the court to rule as requested by him.
The plaintiff acquired title under the will of his wife, Mary Shapine, and she acquired title from Andrew W. Hammond,. by a warranty deed dated March 6, 1877. The lot conveyed to her was bounded on the north by “a street called Broadway,” and on the west “ by a private way,” “ and by said deed Mary Shapine was given a right of way in said way,” etc. Mary Shapine entered into possession under the deed, immediately after it was executed, and she and her husband have occupied the land conveyed, and have used the way, in common with others, ever since. We assume that the grant to Mary
The defendant asked the court “to rule that the evidence was not sufficient to justify a finding that the plaintiff had any right of way in said way, as it did not appear that the grantor of Mrs. Shapine, viz. Andrew W. Hammond, had any right in or to said way, at the time he deeded to Mrs. Shapine.” The court refused to give this ruling; and the defendant excepted; and this is the only exception in the case. The contents of the deed accepted by the defendant, and his use of the way, were some evidence against him that there was in fact a private way to Broadway, such as the plaintiff described in his declaration, which persons other than himself had a right to use in common with him. The actual use of this way by the plaintiff’s wife and by the plaintiff in connection with their occupation of their land, in accordance with the grant contained in the warranty deed of Andrew W. Hammond, was some evidence that the plaintiff had the right of way which he claimed.
An entry upon and a continued occupation of land, with the use of a way as appurtenant thereto, under a warranty deed which purports to convey the land and the right of way as appurtenant to it, are some evidence of title to the land, and of a right to use the way, against one who shows no right to interfere with this use. Ward v. Fuller, 15 Pick. 185. Whitman v. Boston & Maine Railroad, 3 Allen, 133. Ashley v. Landers, 9 Allen, 250. Farwell v. Rogers, 99 Mass. 33. Perry v. Weeks, 137 Mass. 584. Bxceftions overruled