302 Mass. 535 | Mass. | 1939
This is a bill in equity to restrain the defendant from entering upon that portion of George Street, a private way, which is located between the lots of the plaintiffs, in Newton, and from preparing the surface and constructing thereon a way. The Superior Court confirmed the master’s report and, without entering a final decree, reported the case to this court, together with the master’s report, the objections thereto, the motions to recommit the report, and the appeal of the plaintiffs from the denial of their motion to strike out a part of the defendant’s answer.
In 1887, the owner of a large parcel of land in Newton, herein referred to as the Nason tract, prepared a plan dividing the tract into two hundred lots and recorded it in the registry of deeds. This plan showed several private ways running in a general easterly direction to land then or later owned by the Atlas Film Corporation, and herein referred to as the Atlas land. George Street was one of the ways shown on this plan of 1887, but it was represented as terminating at the Atlas land although its side lines were extended a short distance into the vacant land of the Atlas company where it bore the legend “Proposed St.”
In October, 1925, Haynes & Hernandez, Inc., hereinafter called the company, purchased the Atlas land, which adjoined the Nason tract on the east. The company then prepared a plan, dated January 12, 1926, which showed not only the laying out of lots upon the Atlas land but also a considerable portion of the easterly part of the Nason tract. Some of the ways indicated upon the plan of 1887 as ending at the Atlas land were now shown on this plan of January 12, 1926, as extending easterly over the Atlas land and connecting with Plymouth Road. The boundary line of the Nason tract and the Atlas land was represented by a broken line across two of these ways, while in the case of George Street the boundary was shown by a continuous line across
George Street, which has recently been named Puritan Road, is' shown to extend easterly from Vaughn Avenue to Plymouth Road, a distance of approximately four hundred twenty feet, about three hundred thirty-five feet being located upon the Nason tract and the remainder, about eighty-five feet, on the land of the company.
The premises of the plaintiff Gifford are located upon the southwesterly corner of Plymouth Road and George Street and extend westerly along George Street to the Nason tract, while the parcel of the plaintiff Walker is located on the northwesterly corner of Plymouth Road and George Street and also extends westerly along George Street to the Nason tract. The westerly boundaries of the plaintiffs’ lots coincide with so much of the boundary between the Nason tract and the Atlas land as is located at these points. Gifford became the owner of her premises on December 21, 1928. They are composed of two lots numbered 19 and 19A. Lot 19 the company had sold to a predecessor in title on May 20, 1926, by a deed which, after bounding the land by Plymouth Road and George Street, referred to the plan of January 12, 1926, and contained the recital: “Together with the right in common with others entitled thereto to use said streets or roads above referred to, as shown on said plan, for all proper and useful purposes for which a street is ordinarily used in the City of Newton”; lot 19A, located westerly of lot 19, was conveyed by a deed which referred
We have so far referred to facts set forth by the master. He also found that the development of the Atlas land, of
We have examined the master’s report and the various plans attached thereto. The ultimate findings of the master as to the intention of the parties are consistent with all his subsidiary findings and, consequently, his ultimate findings must be accepted as true. MacLeod v. Davis, 290 Mass. 335. Dodge v. Anna Jaques Hospital, 301 Mass. 431, and cases cited.
The deeds to the plaintiffs made reference to a plan and not only described their respective lots but identified the parcels conveyed and declared the relationship of each parcel to the remaining lots in the new development of the company, and also to the easterly lots located in the Nason tract. The plan showed a single area, comprised of two tracts, to be developed in conjunction with each other, by the company, which, as appears from the master’s report, owned not only all the land in the new development but a large parcel of the Nason tract situated upon the southerly side of George Street and adjacent to the premises now owned by the plaintiff Gifford. The deeds construed with the plan, in the light of the attendant circumstances, show that a right of way was established over this forty-foot way along the entire length of the plaintiffs’ properties for the benefit of those entitled to a right of way over George Street to Plymouth Road, including the company, to whose
The plaintiffs, on account of the recitals in their deeds, are unable to deny the existence of a right of way between their lots, Howe v. Alger, 4 Allen, 206, 209; Downey v. H. P. Hood & Sons, 203 Mass. 4, and, upon the facts reported by the master, cannot show that the easement has been abandoned. Willets v. Langhaar, 212 Mass. 573. Arcisz v. Pietrowski, 268 Mass. 140. They now contend that the portion of George Street abutting their premises was shown upon the plan of January 12, 1926, to be a dead end way by the existence of the two-foot strip located across George Street and in line with the westerly boundaries of their respective lots. The planning board on November 17, 1925, had declined to grant its approval to the plan unless the company extended George Street over its land and connected it with a way. The company did not at first desire to make such an extension but agreed to do so if the board insisted, and on December 31, 1925, it bought, in the name of one Clark, all the land on the southerly side of George Street between Vaughn Avenue and the Gifford lot. The planning board gave another hearing on January 19, 1926, and approved the plan. The plan, as recorded, showed the approval of the board. Moreover, the deed of lot 19A to Gifford described the southerly end of this two-foot strip as a part of the way, and she took title to the center of the way, including the southerly half of this strip,
The plaintiffs moved to strike out portions of the answer which referred to proceedings that resulted in the approval of the plan dated January 12, 1926, by the planning board. They also excepted to the admission by the master of evidence concerning these proceedings. The master found that the company was advised by the chairman of this board that it would be necessary to provide an outlet for George Street and that the representative of the company stated that he did not wish to provide such an outlet but that, if the board insisted, he would do so. At the next meeting of the board,
The master was right in excluding evidence, offered by the plaintiffs, that they were induced to purchase on account of their expectation that their properties were located upon a dead end street. The rights of the plaintiffs were governed by their deeds, and their expectation as to the future use of abutting ways was to be determined by the instruments of conveyance. Lagorio v. Lewenberg, 226 Mass. 464, 467. The exceptions to the report considered as modified as herein stated must be overruled and the motion to recommit denied.
The owner of a right of way has the right to enter upon the servient estate on which no actual way has been prepared and constructed and to make such changes therein as will reasonably adapt it to the purposes of a way, having due regard to the rights of others who may have an interest in the way. Sullivan v. Donohoe, 287 Mass. 265. Guillet v. Livernois, 297 Mass. 337, and cases cited. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 298 Mass. 513. The cases upon which the plaintiffs rely are distinguished in the Guillet case.
It follows that the interlocutory decree is affirmed, and that a final decree must be entered dismissing the bill with C0S*S"
Ordered accordingly.