238 Mass. 421 | Mass. | 1921
This is a petition brought in the Land Court for registration of the title to two parcels of land: one fronts on Central Street in Boston and is forty feet deep, with a brick building thereon; the other is irregular in shape, and is in the rear of and joins the front lot. • No question is raised by the respondents as to the registration of the front lot, but it is their contention that the rear lot, upon which stands a one-story wood and iron building erected in 1919, is subject to an easement, appurtenant to their respective estates, that it shall always remain open for light and air. In the Land Cotut a decree was entered for the petitioner subject only to so much of his rear lot as is within ten feet of land of the respondent Hill (and land of one Williams, another respondent, who is not before this court), to an easement of light and air. The judge of the Land Court ruled that the respondent the Fifty Associates had no easement in any of the petitioner’s land. The case is before this court on exceptions of the respondent the
The compass points as they appear in the original deeds from the Broad Street Association are changed in the decision of the Land Court, “ south ” being changed to “ east ” and the other points to correspond therewith. The deed of the petitioner’s front lot from the Broad Street Association to Hills in 1806 described it as bounded southerly “ on a piece of land belonging to said Broadstreet Association, which is to be kept open for light and air, at least ten feet wide, there measuring twenty "feet. . . .” The judge of the Land Court found that the same description in
The judge of the Land Court further found: “ The Fifty Associates claim title under a deed from the Broad Street Association to one Davis, dated August 1,1806, describing a lot of land bounded, (changing the compass points to correspond with the later deeds) northerly on Broad “Street Wharf (India Street) twenty feet, easterly on a lot of land contracted to be sold by said association to Richard Hills forty feet, southerly ‘ on a piece of vacant land belonging to said association (which is to be kept open for light and air forever) there measuring twenty feet ’ and westerly on a lot of land also belonging to said association forty feet, ‘ agreeable to a plan of premises taken by Charles Bulfinch, esquire.’ ” The judge found that the same description is used throughout the chain of title of the Fifty Associates, except that since 1816 the southerly boundary has been “ on a piece of land which is always to remain open for light and air, there measuring twenty feet.” Although no record title is shown to the eight foot strip in the rear on which stands the Fifty Associates’ one-story wooden building, it is admitted to be in the respondent by adverse possession. The Hill estate is held under a deed from the Broad Street Association to Francis Welch, dated February 28, 1806, in which the land is described as bounding northerly “ by a strip of land ten feet wide belonging to said Association which is always to be kept open for light and air twenty feet.” The Williams estate, adjoining that of Hill, is held under a deed from the association to Munroe, dated February 28, 1806, in which the land is described as bounding northerly “ on other land of said Association, being a strip of land ten feet wide which is always to be kept open for light and air.”
The respondent the Fifty Associates contends that, as its front lot is bounded by “ a piece of vacant land ” belonging to the Broad Street Association “ which is to be kept open for light and air for
The easements of light and air granted in the deeds to the other respondents are limited to ten feet. It appears that although the ten foot strips shown on the Bulfinch plan are not carried northerly of the northerly end of the Island and do not abut on either the petitioner’s lot as sold by thi? Broad Street Association to Hills, or on the lot of the Fifty Associates as sold by the association to Davis, yet in the deed of the petitioner’s lot the easement for light and air is limited to a portion only of the open space in the rear of the Hills and Davis lots “ at least ten feet wide,” while the easements granted over the ten foot strip are limited to that distance from the rear boundary line of the lots; the portion of the strip which is more than ten feet wide being northerly of the northerly end of the Island upon which the following lots abut: (1) the lot now owned by the petitioner in which the easement is described as “ at least ten feet wide; ” (2) the lot of the President and Fellows of Harvard College, which is between the petitioner’s front lot and that of the Fifty Associates and is bounded in part on “ a piece of Vacant land . . . (which is to be kept open for light and air forever); ” (3) the lot of the Fifty Associates which is bounded “westerly on a piece of vacant land belonging to said association (which is to be kept open for light and air forever); ” (4) the lots of Hill and Williams, eaph of which is bounded easterly by a strip of land ten feet wide “ which is always to be kept open for light and air;” and (5) the parcel described as the Island, bounded “ Northerly on a piece of vacant land which is always to remain open for the like purposes.” It is seen that none of the deeds by express words create an easement over the servient estate extending more than ten feet from the dominant estate, except those under
The question then is, what is reasonably necessary for the use and enjoyment of the easement granted to the respondent the Fifty Associates in the vacant land in the rear of its estate? It was held in Fifty Associates v. Tudor, 6 Gray, 255, a case which in principle cannot be distinguished from the case at bar, that a distance of ten feet from the dividing line between the dominant and servient estates, unless some extraordinary circumstances are shown, is a reasonable distance at which structures excluding light and air may be erected. The judge of the Land Court found that the petitioner’s rear lot is at no point within ten feet of land of the respondent the Fifty Associates. Moreover, the land of the latter is separated from the petitioner’s front lot by land of the President and Fellows of Harvard College. In the opinion of a majority of the court it is not a correct construction of the deed under which the respondent Fifty Associates claims, to hold that an easement of light and air was granted over the whole strip. Johnson v. Jordan, 2 Met. 234. Collier v. Pierce, 7 Gray, 18. All the deeds which convey lots abutting on the petitioner’s rear lot, limit the easement to ten feet on the vacant land; if it were intended that the petitioner’s entire rear lot was to be kept open for light and air for the benefit of the lot owned by the Fifty Associates, it is difficult to see why the deeds of the lots of Williams and Hill limit the easement to ten feet, and the front lot of the petitioner is limited to an easement of at least ten feet. The respondent Fifty Associates cites and relies on Brooks v. Reynolds, supra, as a
The respondent Hill also contends that all the open space northerly of the Island as shown on the Bulfinch plan, which includes the petitioner’s rear lot, is subject to an equitable easement appurtenant to her estate that it shall always remain open for light and air. As the deeds and plan do not disclose any general scheme for the use and development of the lots, no easement can be found to be appurtenant to the respondent’s land on that ground. Nor is she entitled to any easement in the vacant land, based on the recitals in the deeds from the association of other lots shown on the plan. No easement appurtenant to the respondent’s land can be implied from those deeds or in any other way, except by an actual grant or covenant or absolute necessity. Brooks v. Reynolds, supra. Royce v. Guggenheim, 106 Mass. 201. Keats v. Hugo, 115 Mass. 204. Case v. Minot, 158 Mass. 577. Lipsky v. Heller, 199 Mass. 310. Raynes v. Stevens, 219 Mass. 556, 559. The deed from the association to Welsh dated February 28, 1806, under which this respondent’s title is derived, bounded the land conveyed “ Eastwardly by a strip of land ten feet wide . . . which is always to be kept open for light and air.” This deed, as the judge found, created a right by express grant over so much of the petitioner’s land as lies within ten feet of the respondent’s rear boundary line. The easement so created is the extent to which the petitioner’s land is subjected in favor of this respondent, and the judge rightly so ruled.
It follows that the exceptions of each of the respondents must be overruled.
So ordered.