Needham v. Judson , 101 Mass. 155 ( 1869 )

Colt, J.

In the opinion of the court, upon a true construction of this bill of exceptions and the accompanying deeds and plans, the instructions to the jury must be held erroneous. It seems to have been assumed by all parties, at the trial below and in the argument here, that the place of beginning of the description in the deed from the defendant and his wife to the plaintiff was at a point two hundred and fifty feet from Washington Street, in the east instead of the west side of the private way described. We find nothing in the papers which sustains this idea. The description is much more perfect and consistent, if the starting point is located on the west side of the private way. Thence it runs northwesterly without change of course by the line of the fence and land of Crafts over the brook to land of Allen, and so on around the land conveyed. All the elements in the description of the first line can only be met by beginning on the west side. This private way appears to have been well located and defined by fences or otherwise, and to have extended northerly past the rear end of the three lots fronting on Washington Street.

The controversy in this part of the case arises out of the fact that the last line in the description runs westerly by the north or rear line of the three lots by the fence as it stands on a part of the dividing line, and in the same direction after leaving the fence, until it comes to said private way or point of beginning, and thus extended strikes a point on the private way which is less than two hundred and fifty feet from Washington Street.

The learned judge in substance ruled that this line, after leaving the fence, was to be run to a point two hundred and fifty feet distant from the street, although it should thereby be deflected from a straight line. Without stopping to consider whether the line thus located by a standing fence and straight course would not control the distance of the starting point from Washington Street, by the rule that monuments govern distances, (George v. Wood, 7 Allen, 14,) we suggest another interpretation which harmonizes all clauses in the deed. The private way is a well defined strip of land the fee of which it is agreed was in the defendant, subject to certain rights of way granted by him, while the title to the rest was in his wife. The last line is, in terms, ran to this private way or point of beginning, showing an intention either to regard the private way as the point of beginning, or to make it the alternative termination in case the line as run should not strike the exact point of starting.

This view is confirmed by the further result reached by us, which is, that the deed conveys to the plaintiff the fee in the private way subject to the easements created by the defendant, and so joins all the lines. It is argued that the defendant only joined in the deed for the purpose of conveying his wife’s estate; and that the land conveyed by the deed of Barker to the wife, as referred to, is all that was deeded to the plaintiff. But after describing by metes and bounds thé wife’s land, it adds, “ also all our right and title to said private way, with a free and unobstructed way to and from Washington Street.” The doubt which might arise as to the effect of these words, standing alone, is removed by the restricted covenant that the premises conveyed are free from all incumbrances “ except any right I have given in the private way,” which could only have been used with the understanding that the fee of the way passed by the deed. The reference to Barker’s deed, even if it can be construed as a recital of an intention to convey only the real estate described in it, follows the particular description. And such reference, it has been held, will not exclude any parcel of land actually included, though it might convey land not included in the particular description. Whiting v. Dewey, 15 Pick. 428.

Exceptions sustained.