Oliver v. Pitman

Chapman, J. The petition of Henry J. Oliver, and the order if the board of aldermen thereon, in 1829, do not purport to 1c more than establish the name of Foster Place. The terms Of the order do not establish it as a street or way, and the plaintiff cannot claim a right of way under it. Nor can he claim anything under the deed to Manley in 1823 ; for he is a stranger to the title thereby created. At the time of Oliver’s conveyance to Knowlton, in 1836, he owned the plaintiff’s lot, the defendant’s lot, and the whole of Foster Place from Foster Street to.the lane eading to Charter Street, excepting such rights of way and 50 drainage as he had conveyed to Manley. The defendant is the grantee of what was conveyed to Knowlton. It includes not only the defendant’s tenements, but all that part of Foster Place which then lay in front of the tenements; and contains the following restriction and reservation : “ and said piece of land now constituting a part of Foster Place in front of the tenements embraced in the aforedescribed boundaries, is never to be built upon, but is to remain open forever for the benefit of light and air to the other estates bounding on said Foster Place, and said Knowlton is to pay from time to time his proportion of keeping said Foster Place in good repair, and never to have any communication between said Foster Place and aforesaid alley leading into Charter Street.” This language does not reserve a right of way to Oliver over that part of Foster Place which he conveyed to Knowlton, but merely the benefit of light and air. The plaintiff’s counsel contends that evidence ought to have been admitted to prove that a right of way to and from his estate over that part of the court within the line of the defendant’s premises was convenient, useful and necessary to the proper enjoyment of the plaintiff’s estate. But mere convenience and usefulness are not sufficient to establish a way of necessity. In order to establish an implied reservation of such a way there must be, at the time of the grant, a reasonable neeesssity for its existence. Pettingill v. Porter, 8 Allen, 1. Parker v. Bennett, 11 Allen, 388. Nichols v. Luce, 24 Pick. 103. Brigham v. Smith, 4 Gray, 297. Leonard v. Leonard, 2 Allen, 543. In Gayetty v. Bethune, 14 Mass. 55, it was held that a way of necessity exists only when the person claiming it has no other means of passing from his estate to the public street. But, if we should not hold so strict a rule as this, still it is apparent that the plaintiff has no necessity for a way over the land in front of the defendant’s tenement, for his lot is bounded by Foster Street in front and on the open part of Foster Place on one side; and from the back part of his house he can pass to Foster Place on his own open lot. This has been its condition ever since the conveyance from Oliver to Knowlton. The relative rights of the parties were established by that deed, and 51 when Oliver afterwards, in 1833, conveyed the plaintiff’s lot to Punchard, he could not convey any rights which he had previously granted to Knowlton. And, as he bounded the premises conveyed to Punchard on Knowlton, the right of way granted on Foster Place may be construed consistently with the rights of Knowlton, by limiting it to that part of the place which lay between Knowlton’s lot and Foster Street. By the finding of the jury it appears that no right of way has been acquired to the plaintiff’s estate by adverse use since the conveyance to Knowlton. The parties must therefore claim under these grants, namely: the defendant under the deed to Knowlton, and the plaintiff under the deed to Punchard. The parol evidence offered cannot affect the construction of those deeds. Exceptions overruled.