336 Mass. 192 | Mass. | 1957
This is a bill in equity in the Land Court for a declaratory decree under G. L. (Ter. Ed.) c. 231A, inserted by St. 1945, c. 582, § 1. Primarily the plaintiff seeks a determination of the existence of easements in a right of way and in a so called “reserved area” on its land for the benefit of the defendant. The plaintiff also seeks an injunction and damages.
A final decree was entered declaring that the easements in the passageway and the “reserved area” were “in full force and effect” and that the “land of plaintiff, Socony Mobil Oil Company, Inc. is still subject to said easements” (emphasis supplied). The plaintiff appealed from this decree. We are of opinion that there was error.
The judge made “Findings, Rulings and Order for Decree.” The evidence is not reported in its entirety but the judge designated portions of the testimony to be printed as part of the record. Rule 2 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 693. In these circumstances it is our duty to examine such testimony and decide the issues according to our judgment as to the facts and the law, giving due weight to the findings of the judge which will not be reversed unless plainly wrong. LeBlanc v. Molloy, 335 Mass. 636.
The facts found by the judge and by us may be summarized as follows: In 1926 the Curtis & Pope Lumber Co., hereinafter called Curtis & Pope, owned a parcel of land at the corner of Massachusetts Avenue and Albany Street in Boston. On July 27, 1926, it conveyed part of this land
This indenture with a plan attached was subsequently recorded by Curtis & Pope in the Suffolk registry of deeds in book 4842, page 269. On April 7, 1943, Curtis & Pope conveyed its remaining land with a frontage of 42.67 feet on Albany Street to the defendant and another as trustees.
Prior to the sale of the land to Standard, Curtis & Pope had occupied a brick building on this land at the corner of Massachusetts Avenue and Albany Street as its main office. There was also a stucco building on Albany Street and a two car brick garage in the rear of it. Before the sale two executives of Curtis & Pope used this garage in which to park their automobiles when they came to the office. They continued this practice until 1931.
After the sale Curtis & Pope moved its office to the other side of Massachusetts Avenue in a building it owned there. When this building was taken by the city of Boston for hospital purposes in 1931 Curtis & Pope moved its office to “South Bay ... off Southampton Street.” The executives then ceased to park their automobiles in the garage. For a year or so Curtis & Pope stored lumber, which it sold at retail, in the stucco building and in the garage. There was no evidence of any use of the garage from 1932 to 1935.
In 1936 a man ran a machine shop and welding business in the stucco building which was torn down in 1937. He used the garage for minor welding jobs. From 1938 to 1945 one Salmonson used the garage for supplying automobiles with slip covers and upholstery. In 1946 one Gross bought out Salmonson and carried on the business of repairing the tops and upholstery of automobiles. He used the garage for his repair work and the front of the lot for advertising and parking his own and customers’ automobiles.
On October 15, 1954, the plaintiff notified Gross that he was wrongfully using the passageway and the “reserved area” and requested him to discontinue such use. This suit was instituted on December 23, 1954.
The judge found that the defendant contended that the easements in the passageway and the “reserved area” still existed in her favor and that the plaintiff contended that
The judge further stated that “In the light of all the circumstances, taking the instrument as a whole, I find the business carried on by [the] defendant, its predecessors, lessees or agents, and use made of the 'garage’ in carrying on such business was within the intended activity provided for by said indenture; that there have not been sufficient acts shown to warrant finding a breach of the terms and conditions set forth therein.” We are of opinion that this finding was erroneous.
Before discussing the merits, we think we first ought to discuss the contention of the defendant that the plaintiff has no standing to prosecute this bill because it has not shown that it is a successor in title to Standard which was a party to the original purchase and the indenture. We assume without deciding that the first and seventh paragraphs of the defendant’s answer
Furthermore we are of opinion that the use of the garage was to be limited solely for the convenience of those carrying on a business on the defendant’s land and not to permit a business itself to be carried on in the garage. It is plain that all use of the garage building as a garage in connection with a business conducted on the defendant’s premises ceased when Curtis & Pope moved to “South Bay” and that the rights in the passageway and the “reserved area” thereupon terminated by their own limitations. This limited right of way and the use of the “reserved area” could not be extended into a general easement greater than that contemplated or intended by the parties to the indenture. Atwater v. Bodfish, 11 Gray, 150. Bangs v. Potter, 135 Mass. 245, 247. Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 215 Mass. 381, 388. Makepeace Bros. Inc. v. Barnstable, 292 Mass. 518, 525.
The changed use of the easements was not within the contemplated “normal development of the use of the dominant tenement.” Restatement: Property, § 484. See also § 483. The easements, being created for “so long as” certain uses were made of them, terminated without any entry or other act of the owner of the servient tenement. Markey v. Smith, 301 Mass. 64, 69. Akasu v. Power, 325 Mass. 497, 501. Batchelder v. State Capital Bank, 66 N. H. 386, 388.
The defendant, however, contends that if the easements terminated in 1931 when Curtis & Pope ceased to use the
The record does not disclose the amount of damage if any sustained by the plaintiff and it does not argue the question of damages in its brief so we do not pass upon such question. Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698.
It follows that the final decree must be reversed and a new final decree entered declaring that the land owned by the plaintiff is not now subject to any easements in favor of the defendant and providing that the defendant and her tenants be permanently restrained and enjoined from passing and repassing over said right of way and from using in any way the "reserved area” both of which are described in the indenture dated July 27, 1926.
The plaintiff is to have costs of this appeal.
So ordered.
“1. The defendants neither admit nor deny the allegations contained in paragraph No. 1 of the plaintiff's bill, and call upon the plaintiff to prove the same so far as material.” Part of the seventh paragraph reads, “they [the defendants] contend that the plaintiff has no interest in either the right of way or the reserved area.”