119 Mass. 266 | Mass. | 1876
The rights of the parties in this case depend upon the construction to be given to a.clause in the deed given in
It was not denied by the defendant that under this clause the plaintiff was entitled to an unobstructed way at least twenty-five feet wide, but he contended that no location of the way had ever been made under it, and he asked the court to rule that if a way twenty-five feet wide had, since his occupation, been always left open, he was entitled to a verdict. But the court instructed the jury in substance: First, that, as the way was not located by the deed, if they should find that it had never been otherwise definitely located, then the plaintiff could not maintain his action, unless he had been deprived of a way at least twenty-five" feet wide from his lot to the street. But, secondly, if, when the deed was given, a carriage way, defined by visible objects, had been previously located by the grantor, they might find that such way was intended to be secured to the grantee, although it was forty-five feet wide. Or, thirdly, if the way was not thus located, and the grantee or the plaintiff, after he became owner,1 had appropriated to his own use, under this deed, a carriage way of defined limits, with the knowledge and acquiescence of the defendant or .hose under whom he claimed, which had remained open for a long period of time, even if such way was forty-five feet wide, the jury might find that the plaintiff was entitled to a way of that width.
The accuracy of these instructions depends upon the nature and limits of the right acquired under the deed by the grantee and his assigns. The deed is to be construed by applying its terms to the situation and condition of the property at the time. The grantor then owned a large tract of land, fronting on the New Bedford road, through which an open space of irregular
The case is not like Salisbury v. Andrews, 19 Pick. 250. There a right was given to pass through Central Court, a place which was laid out, had acquired a reputation, and was known by that name. It was thought not to be a forced construction to regard the term Central Court as including all that had been previously laid out, paved and fitted for the use of the houses upon it. And it was held that the grant was of a way limited and defined, and not of a convenient way to be subsequently defined.
In view of the law thus stated, the second instruction should not have been given. The fact that the grantor had laid out a way defined by visible objects, if that way was forty-five feet wide, would not necessarily justify the jury in finding that such way was the way intended by the parties to the deed. This would defeat, as we have seen, the plain intention of the deed. A new trial must therefore be ordered, and it is not necessary to consider the other instructions. Exceptions sustained.