303 Mass. 460 | Mass. | 1939
This is a bill in equity in which the plaintiff seeks to establish, as appurtenant to a building owned by her, an easement of way in and over an adjoining building owned by the defendant, and to enjoin it from obstructing or in any way interfering with the alleged easement. The case was referred to a master; his report, to which neither party filed objections, was confirmed by interlocutory decree ; and a final decree was entered that the plaintiff had no easement as alleged, and dismissing the bill. The plaintiff appealed. The evidence is not reported; it does not appear
The master found that, up to 1899, Merchants Block on North Main Street in Fall River, comprising the building of the plaintiff and that of the defendant, together with the land beneath them, and a strip of land some twelve feet wide, not built over, at the north side of the block, was owned in fee by Edmund C. Gifford, subject to two mortgages to the Fall River Savings Bank. A party wall divides the buildings from front to rear. The plaintiff owns that portion of the block to the north of this wall, including the twelve-foot strip, and the defendant, that portion to the south. A front entrance, stairways, and hallways in the defendant’s building afford the only access to the second, third, and fourth floors of the plaintiff’s building through openings in the party wall. This condition as to entrance existed as far back at least as 1895. On February 21, 1899, the Fall River Savings Bank gave a partial release of its mortgages of the southerly portion of the block (the building now owned by the defendant), the northerly bound being described as running easterly “through the middle or Centre of a brick wall one hundred twenty two and twenty five one hundredths feet to North Main Street . . . .” By deed dated February 25, 1899, with full covenants of warranty, Gifford conveyed the southerly part of the block, being the area covered by the partial release, to Edmund J. Sokoll through whom, by mesne conveyances, the defendant holds title. By instrument dated April 10, 1899, the Fall River Savings Bank discharged its two mortgages. By instrument dated April 12, 1899, Gifford gave to the Bristol County Savings Bank a mortgage of that portion of the block then held by him, including the twelve-foot strip, that is, the northerly portion now owned by the plaintiff. A portion of the description in this mortgage is, “Beginning at the south easterly corner of the lot to be described and at the north easterly corner of land of Edmund
On February 27, 1899, Gifford and Sokoll executed an indenture by the terms of which Sokoll granted to Gifford, for a term of ten years from date, the right to the use and enjoyment of the entrance, stairways, and hallways in question, the toilet rooms on the second floor, and certain other parts of the building, and Gifford agreed to furnish heat for the second and third floors, to light the entrance, hallways, stairways, and toilet rooms, and to provide for their suitable care. At the expiration of this term of ten years the parties agreed that it might be continued without any written extension. This indenture and the deed from Gifford to Sokoll were both recorded on March 2, 1899. On July 28, 1938, the defendant, which acquired its title on April 28, 1938, notified the plaintiff that it proposed to close the openings in the wall and to confine the use of the stairways in question to the use of its own building, whereupon this bill was brought.
The master found specifically that from the time of the execution of the indenture the easement was exercised under and by virtue of the terms of the indenture, and that, from and after the determination of its term of ten years, it was exercised by extension of the operation of the indenture, and that no rights had been acquired by the plaintiff or her predecessors in title by adverse use. He also found that the indenture and deed from Gifford to Sokoll constituted one transaction, and that there was never in the contemplation of the parties to these instruments any right or easement affecting the buildings in question other than that expressed in the indenture, and that it was “not only not the intention of the parties but was contrary to the intention of the parties that there should be any right or easement other than that expressed in the indenture.”
The plaintiff also contends that the discharge of the mortgages by the Fall River Savings Bank, and the giving of a new mortgage to the Bristol County Savings Bank, constituted one transaction; that the money used to pay the earlier mortgages was advanced by the Bristol County Savings Bank; and that, therefore, the latter bank must be held in equity to have succeeded to the same security as that held by the Fall River Savings Bank. Worcester North Savings Institution v. Farwell, 292 Mass. 568. Home Owners’ Loan Corp. v. Baker, 299 Mass. 158. There is, however, no finding that these transactions were one and the same. So far as appears from the report they were entirely distinct and separate transactions. If the plaintiff desired to have a finding of fact made upon this matter, her remedy was on a motion to recommit for further report. W. A. Snow Iron Works, Inc. v. Chadwick, 227 Mass. 382, 392. Raymond v. Stone, 246 Mass. 421, 426. Moreover, the mortgage to the Bristol County Savings Bank was discharged and was replaced by another given on October 23, 1922, and it was the latter mortgage that was foreclosed and through which the plaintiff derived her title. This
Upon this record the plaintiff's contention that the legal title continued in the Fall River Savings Bank after the discharge of its mortgages because it did not reconvey the property to Gifford is unavailing. Barnes v. Boardman, 149 Mass. 106, 114, 115. Flye v. Berry, 181 Mass. 442, 443.
The finding of the master that the parties to the indenture relating to the use of the entrance, stairs, and hallways intended that Gifford should have no rights other than those expressly granted, negatives any presumption of an implied reservation in Gifford’s favor. It appeared that at the time of the execution of the deed from Gifford to Sokoll and of the indenture, Gifford said to his son that “for the present he should not go to the expense of putting in another stairway but that he was considering building a stairway at the north side of the building at a later time.” Upon the expiration of the ten-year term specified in the indenture, the subsequent oral agreement of the owners of the two estates as to the use of the way was, at most, a revocable license. Mason v. Albert, 243 Mass. 433, 437. See Baseball Publishing Co. v. Bruton, 302 Mass. 54, 56-57; Levin v. Rose, 302 Mass. 378, 381. The result is that there was no error.
Decree affirmed with costs.