Stevens v. Young , 233 Mass. 304 ( 1919 )

Braley, J.

It appears that Samuel F. Grosman, having acquired the ownership of nine acres of land, caused a plan to be prepared dividing the tract into lots numbered consecutively from one to forty with proposed avenues or streets which connected with Humphrey Street, a public way. The plan was recorded in the registry of deeds, and by mesne conveyances the petitioner has become the owner of lots thirteen, fourteen, fifteen, sixteen, seventeen and eighteen, while the respondent Young owns lots numbered thirty to forty inclusive.

By the first deed in 1900 Grosman conveyed to one Entwistle, the petitioner’s predecessor in title, lots thirteep, fourteen, fifteen and sixteen. The exact wording of the grant does not appear. We assume on the record that the description in the deed to the petitioner is the same as in the deed of Grosman to Entwistle. The premises are described by metes and bounds as one indivisible tract, giving the northwesterly boundary as “Locust Street or Avenue so called,” -after which follow the words, “Being lots thirteen, fourteen, fifteen and sixteen on a plan of land drawn for Samuel F. Grosman ... and recorded with Essex county (South District) Deeds book 1468 page 600.”

By deed dated August 26,1907, the respondent Young acquired title from one Linnehan, to whom the land had been conveyed on November 21, 1906. ' This deed also described the premises as one parcel, beginning “at the most Westerly corner thereof at the point in the Northeasterly boundary line of land . . . where 'the Southeasterly side line of Maple Avenue, as shown on a plan of lots owned by S. F. Grosman .... and recorded . . . would intersect said boundary line if continued in a straight line . . .,” and after giving the courses and distances the description is followed by this sentence, “Together with the right to use said Maple Avenue and Grosman Avenue, as shown on said plan, for street purposes in common with others.”

The petitioner on May 22, 1912, gained title to lots seventeen and eighteen under a deed which describes the parcel as bounded “Northeasterly by Grosman Avenue, one hundred twenty feet; Southeasterly by Locust Avenue, one hundred thirty five and 75/100 feet;. Southwesterly by'lots 38 and 39 on a plan of land hereinafter mentioned, one hundred twenty feet, and Northwesterly. by lot No. 19 on said-plan, one hundred thirty five and 75/100 feet; being lots numbered 17 and 18 on a plan of this and other lots, . . . together with a right of way in common with others so far as we are enabled to grant the same, in and over the streets and Avenues shown on said plan as if the same were public highways. . . Said premises are conveyed subject to the following restrictions which shall remain in force for twenty years from the date hereof, viz.: ‘No building shall be erected or placed on either of said lots costing less than Three thousand dollars. Said premises shall be used for a dwelling only. No three tenement house or a house to be occupied by three families or any house known as a three tenement flat roof house shall be erected or placed on the granted premises and no part of any building shall be erected or placed within fifteen feet of the line of said Grosman or Locust Avenue, except that steps may extend within said restricted space.’ ”

While the description in the petition for registration consolidates the descriptions as if lots thirteen, fourteen, fifteen, sixteen, seventeen and eighteen constituted an entire tract which never had been divided as shown by the plan, the petitioner, who claims under Samuel F. Grosman, being bound by the recitals in her deeds, is estopped on her own title from contending, that so much of Locust Avenue as lies within the description of the deed of May 22, 1912, has been extinguished as to other lot owners who have acquired appurtenant rights to use the avenue. Downey v. H. P. Hood & Sons, 203 Mass. 4, 10, and cases there cited. But this well settled rule, where the sale is by a plan which by reference is incorporated in the grant, does not control when it appears from the deed and the attendant circumstances, that the parties did not impliedly intend the grant to include all of the proposed ways. Attorney General v. Whitney, 137 Mass. 450, 455. The description in the deed under which the respondent claims undoubtedly conveys, as if they were one parcel, not only lots thirty and forty, but also the fee in Walnut Avenue and in the westerly half of Locust Avenue. The fee having passed, the respondent, subject to the prior rights, if any, of other lot owners, could use those proposed ways for the benefit of his own estate as he might determine. The land, however, is conveyed as stated in the decision of the trial court, “as a solid tract without any reference to the lot numbers on that plan,” the northerly boundary being described as “running across land marked Locust Avenue,” And immediately following the description and constituting part of the grant are the words previously quoted, “Together with the right to use said Maple and Grosman Avenues, as shown on said plan for street purposes in common with others.” It is true, but quite beside the point, that no change appears of record in the plan as originally drafted. The parties, of course, could enter into any bargain they wished to make. The evidence warranted a finding that the purpose of this conveyance was not to follow but to abandon the layout of the plan and the purchase could be made under terms which, while passing the fee in Walnut Avenue and that part of Locust Avenue between lots thirty and forty leading into Walnut Avenue, conferred no easement in the remainder of Locust Avenue. The intention of the parties in so far as consistent with legal rules of construction governs. Bott v. Burnell, 11 Mass. 162, 167. Allen v. Holton, 20 Pick. 458. Hobart v. Towle, 220 Mass. 293. Coolidge v. Dexter, 129 Mass. 167. Taft v. Emery, 174 Mass. 332, 334.

We are accordingly of opinion that the judge correctly ruled that the respondent’s grant included only Maple and Grosman Avenues, and that he had acquired no right of passage in or over Locust Avenue from his easterly line to Grosman Avenue. Light v. Goddard, 11 Allen, 5, 8. Regan v. Boston Gas Light Co. 137 Mass. 37. Pearson v. Allen, 151 Mass. 79.

Exceptions overruled.