Lucier v. Dube , 280 Mass. 1 ( 1932 )

Pierce, J.

This is a petition brought in the Land Court to register title to a strip of land forty feet wide on Altamont Street, Haverhill. It is shown on a plan filed with the petition. The respondent, an adjoining owner on the west of the locus, claims a right of way for all purposes over the land described in the petition.

It appears by the examiner’s abstract of title that in the year 1890 Charles M. Hoyt, Edwin A. Jennings and Dennis T. Kennedy acquired title to a large tract of land on Altamont Street of which the locus is a part. Shortly thereafter they caused a plan of it to be made showing a subdivision of said tract into house lots. The plan with the examiner’s abstract of title shows lots numbered 1 to 12 on Altamont and Olive streets, and lot 13 on Pilgrim Road. Between lots numbered 4 and 5 is a way forty feet wide. This plan also shows an adjoining tract of land marked “Jennings” upon which are lots numbered 1 to 13 and a large lot which fronts on Broadway. The said Jennings is the same person who was one of the cotenants in the other tract. On this plan the lines of the way over the Hoyt tract are extended across said Jennings tract to Pilgrim Road. On May 3, 1892 (as shown by the respondent’s brief), the said Hoyt, Jennings and Kennedy conveyed to the petitioner’s predecessor in title lot 5 on their subdivision plan. The description in their deed is as follows: “Beginning at the southeast corner thereof by said Altamont Street at its junction with a private way; thence running west by said private way 128 feet to land of E. A. Jennings; thence north by said Jennings 50 feet to lot #6 on a plan of. land of grantors; thence east by said lot #6 130 feet to said Altamont Street; thence south by said Altamont Street 50 feet to said private way and point begun at, being lot #5 on said plan.” On May 27, 1891 (as shown by the respondent’s brief), the said grantors conveyed lot 4 on the plan to Joseph W. Allard whose heirs or devisees are now the owners thereof.

The respondent is the owner of a part of the land which adjoins the tract formerly of Hoyt and his two cotenants and which is marked “Jennings” on said plan. In the year 1893 Jennings made a conveyance of his tract to Herbert B. Newton. In this deed no mention was made of any plan or of any interior road or lots. “It did, however, include said thirteen lots and the large lot on Broadway. The deed granted an appurtenant right to use Pilgrim Road in common with others for all the purposes of a street. A week later the said tenants in common purported to convey to said Newton 'the right to use in common with others for all purposes of a street’ the said private way upon which said lots #4 and #5 bounded. These two deeds to Newton were executed subsequent to the conveyances of said lots #4 and #5.”

At the close of the trial the petitioner made fourteen requests for rulings; of these ten were given and four refused. The respondent made eight requests for findings of fact, which were refused except as recited in the decision. The evidence is not reported. The respondent also made nine requests for rulings of law; those numbered 3 and 4 were given and the others refused. Number 3 reads: “When land in a deed is bounded to and along a way, it is only a presumption of fact that the land conveyed extends to the center of the way”; and number 4: “If there are extrinsic circumstances which indicate a contrary intention on the part of the parties to the instrument, this presumption does not apply.”

It must be assumed that the trial judge found all facts required to be found before instructing himself as to the law which governed his decision. Assuming that there were such preliminary findings, there was no error, as the respondent contends there was, in the finding and ruling that the said deeds of lots numbered 4 and 5 conveyed titles to the middle line of that way and that the petitioner now holds title to the northerly half thereof which is the locus in this proceeding. Crochet v. Cotting, 166 Mass. 183, 185. Gould v. Wagner, 196 Mass. 270. Boston Five Cents Savings Bank v. Massachusetts General Hospital, 255 Mass. 583, 585. The contention of the respondent that the grantors did not intend to convey the fee to the predecessor in title of the petitioner overlooks the fact that the title of the petitioner, such as it was, preceded in time the attempted grant of an easement over the same locus to Newton and would, if effected, enlarge the existing servitude upon the petitioner’s, fee, which was determined as of the date of the deed to the predecessor in title of the petitioner.

The respondent’s exception, taken to the ruling of the trial judge, that no easement appurtenant to the respondent’s land over the petitioner’s land can be implied by reservation or otherwise from the deeds under which the parties hold title must be overruled. There is no implied reservation of an easement in case one sells part of his land over which he has previously exercised a privilege in favor of the land which he retains unless the burden is apparent, continuous and strictly necessary for the enjoyment of the land retained. Carbrey v. Willis, 7 Allen, 364. Sullivan v. Ryan, 130 Mass. 116. O’Brien v. Murphy, 189 Mass. 353. Apsey v. Nash, 229 Mass. 77.

It is not necessary to consider whether there was error in the third ruling “that even if the respondent’s predecessors in title had an easement over petitioner’s land it has been lost by their own actions and conduct even though no use was made by the petitioner inconsistent with its further existence.” Arcisz v. Pietrowski, 268 Mass. 140. Les v. Alibozek, 269 Mass. 153.

We have considered all exceptions argued by the respondent and find no error in the rulings of the judge. All other exceptions are deemed to be waived.

Exceptions overruled.