Goss v. Calhane

Devens, J. The decision of these cases depends upon the question whether Mrs. Calhane had a right of way in the passage upon which the shed was built. Both parties claimed the title to their premises from J. H. Duncan, who, in 1852, conveyed to one Peaslee a parcel of land by metes and bounds which apparently exclude the way, on the westerly side of which it is situate, by the words “ thence running southerly by a twelve foot way which I lay down: ” this parcel by mesne conveyances came to Goss, March 31, 1868, by deed of George A. Green. In 1863, Duncan conveyed to Frye, as one parcel, a tract situated upon the eastern side and end of the same way, the boundary of which is in part as follows: “ thence easterly by land of said Green and a private way twenty-nine feet to a stake; . . . . thence northerly seventy and a half feet by a private way twelve feet wide to a stake,” &c. An inspection of the plan shows these lines to be along the end and by the easterly side of said way. Frye afterwards conveyed this whole tract to Gilman, who divided it and conveyed to George A. Green, who, on March 31, 1868, conveyed to Goss, the portion of the tract which was on the eastern side of the way; so that Goss then owned the tracts [428] on either side of the way. Subsequently, on January 1, 1870 Gilman conveyed the remaining portion of the tract held by hint which bounded upon the end of the way, to Daniel Calhane, by whom through a third party it was conveyed to his wife. The claim of Goss is that by the conveyance to him of the parcels upon the eastern and western sides of the way he became owner in fee of the whole, and was thus entitled to obstruct, or to build upon it. All the deeds referred to purport to convey a privilege of passing and repassing in this way. Assuming that the effect of the deeds, under which Goss claims, which bound the parcels of land owned by him upon the way, is to extend each parcel to the centre of the way, and thus give him the fee in the whole, it does not determine the case in his favor. So far as that portion of the tract conveyed to him is concerned which is described as a way, even if he has the title in fee therein, it is subject to all the servitudes properly imposed upon it. Fox v. Union Sugar Refinery, 109 Mass. 292. When therefore Goss’s grantor was bounded by Duncan “ upon the way I lay down,” if it be considered as a conveyance ad filum vice, the portion of the tract covered by the way was still subject to the uses for which it was thus laid down, and those must have included its use as a way to pass and repass to the various parcels which Duncan owned, and which abutted thereon. The fact that, in connection with the parcel conveyed, Duncan grants the privilege of passing and repassing in the twelve foot way, indicates clearly that the whole passage was to be kept open. It would not havb been in the power of Goss, if he had owned one side only, to have closed that side of the way, and thus have narrowed his opposite neighbor down to the use of the half which was his side of the way. The ownership of the land upon both sides does not enable him to close it as against any other person having a lawful right to use it. When by his deed to Frye, Duncan conveyed the parcel of land bounding upon the side and the end of the way, he conveyed the right to use the way either from its side or end; and when Frye’s grantor divided the parcel and conveyed the tract upon the side and that upon the end by separate conveyances, even if [429] the latter was subsequent, the owner of the second tract was still entitled to this use. Nor does the fact that the earlier deed conveyed the land to the centre of the way by warranty, raise any estoppel against the grantor under the subsequent conveyance, or prevent him from asserting this right, for such deed conveyed and warranted, so far as this portion is concerned, the fee in a private way only. Even if in 1852, when Duncan conveyed to Peaslee, there was a fence across the end where now Calhane claims to enter, while this might indicate the limits of the way, yet, so far as Peaslee was concerned, it would not restrict Duncan’s right to use it for the benefit of his own remaining land by entry thereon either from the end or side of it. In 1863, Duncan conveyed by a deed bounding the land upon the end of the way. He thus conveyed a right in it. Even if after the division of the tract thus conveyed, Gilman for some few years ceased to use the way, having another access to Main Street, this non-user did not destroy the right which was appurtenant to the parcel then held by him and now held by Mrs. Calhane. Hayford v. Spokesfield, 100 Mass. 491. Nor is the fact important that in the division as made by Gilman, the parcel which has come to Goss is cut off from an access to the passage leading to Main Street, while the parcel held by Calhane has an access to both the ways the use of which appertained to the parcel conveyed by Duncan to Frye. We are of opinion, therefore, that the ruling of the learned judge, upon the case as reported, that Mrs. Calhane had no such easement in the way from her premises to Court Street as would justify her in removing obstacles placed therein, was incorrect, and the Exceptions are sustained.