Old South Society v. Wainwright

Field, J. There is not sufficient evidence to warrant the ruling that George R. Minot, by his deed to George Ridgway dated June 30, 1795, intended to convey any land not a part of Spring Lane lying north of the northerly boundary, which is described as “ northerly on the lane aforesaid in front, there measuring on said lane sixteen feet.” The width of the lot is sixteen feet, with an extension “ over said alley way at the height of eight feet, and across the same, three feet and eight inches,until it comes against another house of said Minot,” with the [448] privilege of using the alley way in common with said Minot, his heirs and assigns, to the necessary or vault at the head of the alley. It is unnecessary to determine whether this deed conveyed the fee to the centre line of the alley way, or to the easterly or westerly side of it, because there is no right granted to make the extension over the alley way continue northerly beyond the northerly boundary of the dwelling-house and land as conveyed. The grant of “ a privilege in the pump in the street,” which was situated either northerly of the north boundary of the dwelling-house and land, or of this line extended across the alley way, implies that the land in which the pump and well were situated was not granted. The argument is, that, as the lot is bounded “ easterly on an alley way and other land owned by said Minot,” the lot must have extended on the easterly side north of the alley way, as the alley way ceased when the northerly boundary of the house was reached, and therefore that the lot conveyed must have included a parcel of land, at least as wide as the alley way, bounded easterly on Minot’s other land, and extending northerly as far as his other land extended. If these words could otherwise have no intelligible meaning, still it would be difficult to define all the boundaries of the land included in this description. But these words as applied to the land may have an intelligible meaning without extending any part of the lot conveyed to Ridgway northerly beyond the northerly line of sixteen feet on the lane continued across the alley way. There was a vault or necessary on Minot’s land at the head of the alley and across it, and, whether Ridgway’s easterly line ran through the centre of the vault or on the easterly or westerly side of it, the lot conveyed, so far as the vault extended, would be bounded easterly on other land owned by said Minot. Again, the lot was conveyed with a right of extension over' the alley way at the height of eight feet, “until it comes against another house of said Minot,” and by the deed it may have been intended that the lot on the easterly side should be bounded by the alley way for eight feet from the surface, and that above this it should be bounded by the other land owned by said Minot, which was the house and land for whose use a right in the alley way and vault was reserved in the deed. [449] The deed of Minot to Campbell of the lot on the east, dated July 30, 1800, cannot be used to detract anything from Minot’s previous deed to Ridgway, but it may perhaps be used to show the buildings on the land at the time of the latter conveyance, and the condition of it. This deed describes the lot conveyed as bounded “ westerly by land lately sold by said Minot to George Ridgway deceased, and now owned by John Driscoll, there measuring to the front of skid Driscoll’s home [house] forty-three feet more or less, then making a jog and measuring on a northerly boundary the width of an alley way, as the same now runs, about three feet, then running to the first-mentioned bound on said street, and measuring from said jog thirteen feet and three inches, more or less.” If land north of the alley way had been previously conveyed to Ridgway, these last two lines would naturally have been described as bounded on land conveyed to Ridgway. The description of the lot in the mortgage given by Stephen Minot, dated December 15, 1766, which is in part the same land conveyed to Campbell by George R. Minot, bounds it “ westerly, on Spring Lane, and the house and land now improved by said Whittemore,” which indicates, as all the deeds, including that of Minot to Balch, indicate, that the lot of land described in the second count of the plaintiff’s declaration was considered to be a part of Spring Lane, where were a pump and well from which the abutters had the right to draw water. If the fee in Spring Lane to the centre line is in the abutters respectively, still the plaintiff would have no right to maintain the fence which the defendants took down, because Spring Lane is a public way. In accordance with the terms of the report, the finding on-the second count must be set aside, and a new trial ordered on that count. So ordered.