Lefavour v. McNulty

Field, 0. J. We understand, from the agreed statement of facts, that the way was well defined by boundaries; that it had been used in connection with all the lands hereinafter described since 1669: and that for more than forty years a fence had been maintained across the way at the northerly boundary of what is 416 now the defendant’s lot, with a gate in this fence through which the way was used for the purpose of passing to and from Essex' Street from and to the defendant’s lot. From 1866 to 1883 the plaintiff’s land, the defendant’s land, and lot C were owned by Elizabeth Hodges. She might have discontinued the way except so far as the owners of lot D, which is north of lot C, had rights in it, but it is agreed that, while she owned the three lobs, she used the way in connection with the land which now belongs to the defendant. On the death of Elizabeth Hodges her real estate was sold at public auction, and her heirs, one acting by a guardian, conveyed each of the three lots she owned to different persons. The sales and conveyances we understand were made at the same time. Lot A was conveyed to the plaintiff, the westerly boundary in the deed being “ then turning and running northerly on a courtway two hundred and twenty-one feet to Essex Street,” and the description ends as follows: “ with all the rights in common on said court, it being the estate conveyed to Joseph Hodges by deed,” etc. The easterly boundary of lot 0 in the deed made by said heirs to one Odell, who conveyed it to Jones, the present owner, was, “ thence turning and running southerly on a courtway one hundred and twenty-seven feet and nine inches, with all the rights in common on said court.” The westerly and northerly boundaries of lot B in the deed made by said heirs to the defendant were, “ beginning at the southwesterly corner thereof, thence running northerly by land of Ward, and land now or formerly of Forrester, about three hundred and thirty-seven feet, to a way leading to Essex Street; then running easterly fifty-two feet by said way and land of Hodges”; and the description ends with “ being the same premises conveyed to Elizabeth Hodges by James A. Farless et al. by deed,” etc. This deed did not contain the words “ with rights in common on said court,” or any similar words. The boundaries and measurements of lots A and 0, when applied to the plan, may perhaps be thought to indicate that the fee of the courtway was not intended to be included in the conveyances; but we assume, in favor of the plaintiff, that his deed conveyed the fee to the centre line of the way, with the right to use the whole of the way in common with others. In the habendum of each of the deeds were the words “ to have and to hold with all the privileges and appurtenances,” etc. 417 Construing all the deeds together, it seems plain that it was the intention of the grantors that the way should continue to be used by all their grantees in common. The boundary line of the land conveyed to the defendant, running on one side “ to a way leading to Essex Street,” and then running “ by said way,” operated to give to him a right to use the way to Essex Street as appurtenant to the land, if the grantors could convey that right, and they plainly could in the present case. O’Linda v. Lothrop, 21 Pick. 292. Fox v. Union Sugar Refinery, 109 Mass. 292. Goss v. Calhane, 113 Mass. 423. See Geible v. Smith, 146 Penn. St. 276. Judgment affirmed.