Franklin Insurance v. Cousens

Morton, J. The mortgage deed under which the plaintiff claims conveys to it a lot of land one of the boundaries of which is described as on “ Cedar Square,” being the premises “ lately known as the Hotel Flanders.” Before this deed was made, [261] Reed the mortgagor, being the owner of the land now claimed by the plaintiff and the defendant, had laid out and graded over the. land claimed by the defendant, on the northerly front of the plaintiff’s premises, a way thirty feet wide, running from Cedar Street to McLean Place. This way was graded and finished, curved curbstones having been set up by the city at the corners of Cedar Street, and was intended and used by the defendant, and by the plaintiff after it took possession, as a private foot and carriage way and means of access to the Hotel Flanders. The only question in this case is whether the plaintiff took by implication a right of way over the thirty-foot passageway; and we are of opinion that it did. The rule is, that, when a grantor conveys land bounded on a street or way over his other land, he and those claiming under him are estopped to deny the existence of such street or way. Tobey v. Taunton, 119 Mass. 404. Lewis v. Beattie, 105 Mass. 410. Howe v. Alger, 4 Allen, 206. If the plaintiff’s northerly line had been described as bounded upon a way or passageway thirty feet wide, it is too clear to admit of discussion that the grantor and the defendant claiming under him would be estopped to deny the plaintiff’s right to a way thirty feet wide between Cedar Street and McLean Place. It can make no difference that the way is called by another name. The question is whether the thing intended as a boundary was in fact a way ; if it was, it is immaterial whether it is called a way, or a street, avenue, lane, road, place or court. Thus, in the case at bar, there seems to be a street called “ McLean Place,” which is a boundary of the lands of both the plaintiff and defendant. But clearly the same rules of law would be applicable whether it is called McLean Street or McLean Place. The question then is, whether in the-deed to the plaintiff the parties understood and intended the northerly boundary to be upon a way thirty feet wide called Cedar Square. Such a way had been laid out, graded and used in connection with the hotel, which had been adapted to it by steps and otherwise. Though “ Cedar Square ” was the name by which the area of land extending to Belmont Street was known, yet it included this way, [262] and the plaintiff had the right to understand that its no.therly boundary was such way. The language of the deed, “ beginning at the corner of Cedar Square and Cedar Street,” implies that the point of beginning is the corner of two ways or streets. It is only appropriate to describe such a corner. The grantor had made this part of his adjoining land a way in fact, upon which he bounded the plaintiff. The questions whether the plaintiff acquired a fee to the middle of the way, or any right in the other land of the grantor between the way and Belmont Street, are not before us. This action is for an obstruction of the way, and not for a trespass. We are of opinion that the plaintiff had a right of way over the thirty-foot way in front of the hotel, called Cedar Square, which the defendant is estopped to contest; and therefore that this action can be maintained. Judgment affirmed.