Fox v. Union Sugar Refinery , 109 Mass. 292 ( 1872 )

W ELLS, J.

A deed, in which the land conveyed is bounded upon a passageway, gives to the grantee rights, by estoppel, not only in that part of the passageway which lies opposite to his land, but also, by necessary implication, to such outlet or termination as will make the way available for its intended purpose. If nothing else is contained m the deed to define it, the extent of the grantee’s rights beyond the limits of his land will depend upon and may be shown by extrinsic facts, as they existed at the time of the conveyance. Salisbury v. Andrews, 19 Pick. 250. Atkins v. Bordman, 2 Met. 457. Stetson v. Dow, 16 Gray, 372.

When the deed itself defines the extent or limits of the way referred to as a boundary, the estoppel is not confined to so much of the way as is necessary for the enjoyment of the granted premises, but extends to the whole extent of the way as described. Thomas v. Poole, 7 Gray, 83. “ Where a plan is referred to in a deed, as containing a description of an estate, the courses, distances and other particulars, appearing upon the plan, are to be as much regarded in ascertaining the true description of the estate, and the intent of the parties in making it, as if they had been expressly recited and enumerated in the deed.” Morgan v. Moore, 3 Gray, 319. Lunt v. Holland, 14 Mass. 149. Davis v. Rainsford, 17 Mass. 207. Parker v. Bennett, 11 Allen, 388. Murdock v. Chapman, 9 Gray, 156.

This rule of interpretation is applied to the ascertaining of incidental rights as well as the principal subject matter of the grant. In Farnsworth v. Taylor, 9 Gray, 162, it operated to give the grantee the right to have a private way kept open to the width of seventy feet at its outlet, against the lands of. other purchasers from the same grantor, although by his deed he was bounded “ on a forty feet street; ’’ because the plan represented such a widening of the street at that point. In Rodgers v. Parker, 9 Gray, 445, a deed of land bounded “ on a passage called Hancock Avenue on said plan,” was held to give to the grantee a right of way, not only to the outlet of the avenue, but also in the opposite direction as far as the avenue extended, although there was no outlet at that end. In this respect it corresponds with Thomas v. Poole, above cited. In Stetson v. Bow, already cited, the avenue referred to extended from one street to another and the defendant, who was bounded upon it at one end, was held to have a right of way through to the other end.

The present case differs from all those cited, in that the passageway referred to as a boundary does not terminate, at either end, in a public street. At one end it enters Lynde Street, upon which the plaintiffs’ land is also bounded; at the other it enters another narrow passageway extending across from Third Street to Fourth Street. The case finds that all these streets and passageways were owned by the Charlestown Wharf Company, who caused the whole tract to be laid out in streets, ways and lots, and from whom both parties derive title.

But the grantee of an interior lot upon such a plan, referred to in his deed, cannot be restricted in his rights to the single passageway upon which he is bounded. The law will imply in his favor the right to use the passageway upon which he is bounded, not only for the purpose of going back and forth upon it, but also for the purpose of reaching the public ways, by means of such other avenues as his grantor has, by his plan, represented to exist. If there are two or more of such avenues, it is not for the grantor to say that his grantee shall be restricted to one only. The deed is to be taken most strongly against him, and in furtherance of the beneficial operation of his grant. Atkins v. Bordman, 2 Met. 457. Saltonstall v. Long Wharf Proprietors, 7 Cush. 195, 201.

We are of opinion, therefore, that, by the proper construction of the deed to the plaintiffs, they acquired the right to use not only the passageway on which their lots were bounded, but also such other connecting ways, represented on the plan, as would enable them to reach the public ways in either direction; provided their grantor’s title was sufficient therefor. And as the deeds of all the other lots were made with reference to the same plan, and contained similar provisions in regard to the way, we think the grantor retained sufficient title to give full effect to the deed to the plaintiffs, according to the construction here adopted.

Another view of the case is perhaps equally decisive. On October 3, 1838, the Charlestown Wharf Company conveyed all the lots between Third and Fourth Streets, except the four which made up the entire section fronting on Third Street, having its rear upon the passageway named in the plaintiff’s deed, and extending from Lynde Street to the narrow cross passageway, to which this controversy relates. The deeds of those lots, which were bounded on the passageways respectively, contained words, as to the right of passing and repassing thereon, similar to those in the deed to the plaintiffs, which were as follows, after declaring that the tract of land conveyed includes certain lots numbered on a plan made by Eben Barker, dated October 3,1838, recorded with Middlesex deeds: “And the right in common with said corporation, its successors and assigns, and all others having the like right, to pass and repass in and over said passageway, which right is appurtenant to each of said granted lots.”

. The right thus retained by the Charlestown Wharf Company applied to both passageways, and was appurtenant to its remaining land. It was appurtenant, therefore, to each of the several lots into which that land was divided. Underwood v. Carney, 1 Cush. 285. Whitney v. Lee, 1 Allen, 198. By the subsequent conveyance to the plaintiffs of three of those lots, this right would pass, even without express words, as appurtenant thereto. The fact that a fourth lot intervened between those conveyed and the cross passageway, would not sever the appurtenance of the way.

The express words in the deed to the plaintiffs are not inconsistent with the right as claimed by them. On the contrary, when taken in connection with the plan, they favor the inference of an intent to give a passageway open at each end ; thus requiring the use of the cross passageway which was retained by the Charlestown Wharf Company in its conveyance of the lots bounding thereon.

The plaintiffs then are entitled to recover for any obstruction of their right of way through the passageway between Third and Fourth Streets. The ruling of the superior court is accordingly reversed, and the case remanded to that court for further proceed iocs.

Verdict set aside.