271 Mass. 62 | Mass. | 1930
This is a petition to register title to a strip of land in that part of the petitioning town known as Siasconset. The petitioner claims title ultimately through one Flagg and immediately under deed from the Proprietors of the Common and Undivided Land of the Island of Nantucket, hereafter called Proprietors, subject to trusts therein declared. In 1873 Flagg owned a large tract of land including a part, if not the whole, of the locus. So far as concerns the present controversy, it was (as found by the trial judge) bounded easterly by a line substantially at the foot of a high bank or bluff, between which and the Atlantic Ocean at mean high water is an expanse of beach upland owned by the Proprietors. Flagg had plans made dividing his tract into lots, the easterly line of which was at a reasonably safe distance westerly of the edge of the bluff. A foot path ran along the top of the bluff. By deed dated September 1, 1892, Flagg conveyed to Mrs. Mitchell, hereafter called the respondent, a tract composed of three of the most easterly tier of his lots bounded easterly by a foot path along the bank. By deed dated September 21, 1892, Flagg conveyed to the Proprietors the tract of land (with exceptions not here material) lying between the easterly boundary lines of the most easterly tier of said lots, being in part the easterly boundary of the respondent’s tract, on the west, and the beach upland belonging to the Proprietors, on the east, the strip so conveyed to be held by the Proprietors in trust for the purpose of a way or foot path along the bank and for no other purposes, with authority to convey said tract to the petitioner for the same purposes. By instrument dated the following day, Flagg gave to the respondent a quitclaim deed of all his interest in the land lying eastward of and between the extension of the northern and southern lines of the tract theretofore conveyed by him to her with the
Other relevant facts found by the trial judge.are these: “The respondent built a house on her lots to the west of the foot path, and in 1893 secured the edge of the bank from crumbling by a sort of bulkhead of boards, filled in between her house and the edge of the bank with soil, and made the space into a lawn, leaving a well defined foot path over it as a part of the continuous foot path from Sankaty Head Lighthouse southerly along the top of the bluff; planted rose bushes and broom on the face of the bluff, both for ornamentation and to secure it from washing; built a flight of about one hundred steps down the bluff from in front of her house; built two bath-houses, each containing three compartments, at the foot of the bluff, but to the west of the boundary line of the strip conveyed to the Proprietors in 1892; and a few years later erected on said strip at the foot of the bluff a small engine house used in connection with a gas plant for her house. For a period of over twenty years she has cut the lawn, cared for the bushes, replaced the soil
The trial judge granted the request of the respondent for a ruling to the effect that she entered upon the disputed premises under claim of title based on her deed of September 22,1892, from Flagg and thereafter her occupation and possession were under color of title, denied certain other requests for rulings, found that she had not acquired title by adverse possession against the petitioner and its predecessor in title, and ordered a decree for the petitioner. Exceptions by the respondent bring the case here.
The respondent states expressly that she does not rely on the deed from Flagg dated September 22, 1892, except so far as it may give color of title to her entry upon the disputed premises. She contends that she has acquired title to the disputed premises by adverse possession subject to the rights of the public to use the foot path.
The judge before rendering his decision took a view of the premises. He also knew the situation of the property of the respondent and surrounding properties and the use by the public and by adjacent owners of the foot path from prior proceedings before him, and it was agreed that he might use this knowledge in deciding the present case. He also made his findings of fact adverse to the respondent upon
The point open to the respondent for argument is that the findings of special facts made by the trial judge are of such nature, or so contradictory and incompatible, that as matter of law the order for the decree in favor of the petitioner is not warranted.
When the respondent entered upon the disputed tract under the Flagg deed, by its terms she had express notice of the deed from Flagg to the Proprietors and of the trust thereby created. That trust was "for the purpose of a way or foot path along the bank.” There is no finding that any act done by the respondent was incompatible with that trust. No act of the respondent in pursuance of her alleged possession was inconsistent with the trust for the maintenance of the way or foot path. The construction by the respondent of the bulkhead, and the other means taken to support the bluff, were not adverse to the trust but were in truth in aid of it although not designed to that end. The building of the steps and the erection of the two small buildings did not in any degree interfere with the title of the Proprietors or with the public trust for which they held title. The inference of permission by the Proprietors for these incidental and subsidiary purposes cannot as matter of law be pronounced impossible or inconsistent with the acts done by the respondent. Notwithstanding the acts of the respondent, given their collective weight, the trust was at all times in force and the Proprietors were under no obligation at their peril to put a stop to comparatively trifling trespasses on the land in no way impairing the trust estate or preventing them from doing whatever might be required with the lapse of time for the active support of the purposes of the trust. The facts taken together do not require the further finding of actual disseisin or ouster of
The findings of facts made are not inharmonious one with another, and they are consonant with the ruling to the effect that the respondent entered under claim of title and that thereafter her occupation and possession, such as shown by the findings, were under, color of title. It is not necessary to review one by one the requests for rulings, which were denied. It is enough to say that no error of law is disclosed, either in the facts found or in the refusals in view of those facts to grant requested rulings.
Exceptions overruled.