Webber v. Cox

256 Mass. 595 | Mass. | 1926

Carroll, J.

This is a petition to register title to a parcel of land situated on the corner of Nashua Avenue and Parkhurst Court, Gloucester. The case is in this court on the respondent’s exceptions to rulings by the judge of the Land Court, and to his refusal to rule as requested by the respondent.

The petitioner claimed as appurtenant to her land a right of way over a driveway known as Parkhurst Court. According to the findings by the judge of the Land Court, this driveway ran from Nashua Avenue at an angle as shown on the petitioner’s plan, and not in a straight line as contended by the respondent. The land of the respondent is on the easterly side of the driveway. It was found that one Ricker, in 1870, acquired a large tract of land which included the locus, the respondent’s land and various other lots. In 1881 he conveyed to Samuel L. Ryan land adjoining the locus on the west. In 1886 Ricker conveyed to A. P. Parkhurst land which the respondent now holds. This deed refers to a plan to be recorded. In 1897, Ricker conveyed to Florence Lincoln the land to which the petitioner claims title and asks to have registered. The conveyance to Ryan was by metes and bounds, and the deed makes no reference to a plan; the deed to Lincoln does refer to a plan, which could not be found. It was also found that the plan put in evidence by the respondent showing the driveway to be straight was not a ground survey, was not drawn to scale, and showed no bearings or courses. The judge viewed the premises and heard the testimony' of witnesses. He found that the petitioner has title to her land and as appurtenant thereto has rights of way in Parkhurst Court; that the respondent has as appurtenant to her land rights of way in the court; and that the locus is subject to a right of way to and from a well. These findings of fact are final. We cannot review them. Unless there was some error of law, the decision of the Land Court must stand. Marvel v. Cobb, 204 Mass. 117. Boston & Albany Railroad v. Reardon, 226 Mass. 286, 291.

The facts were in dispute; it was a case where the testimony of witnesses had to be weighed. See Hartt v. Rueter, 223 Mass. 207, 212. There was no error in refusing the respondent’s first and second requests, in substance that on all the evidence the petitioner had not sustained the burden of proof resting upon her. The fact that the plan relied on by the respondent, referred to in the deed from Ricker to Parkhurst, shows Parkhurst Court to run in a straight line is not conclusive. The conveyance to Ryan on the west of the petitioner’s land made no reference to any plan. There was no error in finding that the Ryan lot was a monument showing the westerly line of the petitioner’s land. See Taft v. Emery, 174 Mass. 332, 334. Simonds v. Simonds, 199 Mass. 552, 554. The judge of the Land Court was called upon to ascertain the intention of the parties, especially the intention of the grantor in the deeds to Ryan, Parkhurst and Lincoln. He could take into account all the circumstances surrounding the transaction, including the occupation and acts of the parties. See Simonds v. Simonds, supra. It would serve no useful purpose to review the evidence in the case. A question of fact was involved which it was the duty of the trial judge to answer. Many of the respondent’s requests involved questions of fact and were refused properly for this reason.

As to request numbered 6, in effect, that the deed from Ricker to Parkhurst "must be satisfied-before the petitioner’s land can be registered,” and must be construed most favorably to the respondent Cox, the judge ruled that Ricker could not give Lincoln title to land which was included in Ricker’s prior deed to Parkhurst; that where there is doubt in the construction of a deed poll, it is to be construed in favor of the grantee. There was no error in this ruling, and the respondent cannot complain of the rulings or refusals to rule by the trial judge. He considered all the questions involved, and there was evidence to support his findings of facts. There was no error in any of his rulings.

Exceptions overruled.