Weeks v. Brooks

Braley, J. By St. of 1904, c. 448, § 8, in proceedings for registration of title, a party who is aggrieved by a finding of fact can have a jury trial on appeal to the Superior Court. After an appeal has been duly claimed of record, the issues are to be framed by the Land Court, and copies of all material papers must be filed in the appellate court by the appellant within the time prescribed by the statute. Luce v. Parsons, 192 Mass. 8. Foss v. Atkins, 193 Mass. 486, 487. Dunbar v. Kronmuller, 198 Mass. 521. By St. of 1905, c. 288, the judge is also required within thirty days after the entry of the appeal to transmit a full report of his decision so far as material to the questions involved, which by analogy to an auditor’s report is made prima facie evidence. But, if after a decree for registration has been ordered an appeal lies for a jury trial on the facts, there is no record to transmit until the issues have been framed and allowed. If the appeal is perfected, the Superior Court may modify or enlarge the issues sent up, or prepare additional issues where such a course becomes necessary for an intelligent trial of the controversy. Luce v. Parsons, 192 Mass. 8, 11, 12. The respondents duly claimed an appeal, but after issues had been framed they were disallowed, and for want of this precedent condition the appeal not having been perfected, the Superior Court never acquired jurisdiction. It follows that the orders denying the motion to frame issues in that court, and granting the motion to dismiss, were right. But if the judge, when properly requested by the defeated party, decides that no questions of fact are involved and for this reason declines to frame issues, or to allow issues after he has framed them, his decision may be reviewed by this court upon [462] exceptions or report. R. L. c. 128, § 13. St. 1904, c. 448, § 8. Dunbar v. Kronmuller, 198 Mass. 521. We assume from the recitals in the record that the respondents who prosecute the exceptions were not strangers, but were properly before the court as parties under R. L. c. 128, §§ 30, 33, and that the only ground upon which the judge went is shown by his indorsement, that in view of his decision as to the title the issues presented no questions of fact. In the delimitation of the petitioner’s land, it became necessary to determine the éxaet location of the open area designated as the “ junction ” of the public ways described in the agreement, upon which rest the rights of the respondents to enforce the restrictions created by the instrument. It is settled that, where in an attempt to locate land according to the description given in a deed or other instrument uncertainty arises, evidence of extrinsic facts is relevant to ascertain the intention of the parties. A disputed boundary, or the condition of the locality at the time of the conveyance, are familiar illustrations of the rule. Putnam v. Bond, 100 Mass. 58. Hathaway v. Evans, 113 Mass. 264. Hoar v. Goulding, 116 Mass. 132. Dunham v. Gannett, 124 Mass. 151. Barrett v. Murphy, 140 Mass. 133. Haskell v. Friend, 196 Mass. 198. Gould v. Wagner, 196 Mass. 270. The streets as shown by the chalk and compilation plan do not cross at right angles, but open into each other so that the side lines join at different points, while the centre lines, when projected, apparently intersect at various other points; and there is no common point of intersection. If the lines of intersection are established at one point, the petitioner’s land is unincumbered, but if located as the respondents contend, a portion of the premises is within the restricted space. To determine that question the physical conditions existing at the date of the agreement would have to be ascertained. In view of subsequent changes caused by the public authorities in taking land for widening both streets, and the outside avenue opening into the junction, the inquiry had been complicated and became more difficult of solution. But even the petitioner does not contend that with nothing more than the agreement in hand the judge upon taking a view could have ascertained the limits of the locality and awarded judgment, for the description without extrinsic aid could [463] not be intelligently and accurately applied. Obviously documentary and oral evidence was not only admissible but necessary to locate and define the original boundaries. Hoar v. Goulding, 116 Mass. 132. Macdonald v. Morrill, 154 Mass. 270. Graves v. Broughton, 185 Mass. 174. First National Bank of Woburn v. Woburn, 192 Mass. 220. De Ponta v. Driscoll, 200 Mass. 225. It appears that the petitioner introduced considerable evidence in support of his contention of a clear title, but the respondents offered no testimony. A jury trial, however, where the title to real property is put in issue, is not a privilege to be granted in the sound discretion of the court as in probate appeals, or issues in suits in equity, but is a right guaranteed by the Constitution. In the lawful exercise of this right the respondents were not required to offer any evidence in the court below, but could reserve their testimony for presentation at the trial of the appeal, or even there might take the verdict of the jury upon the case as made out by the petitioner. Mead v. Cutler, 194 Mass. 277. If in view of the uncontradicted extrinsic evidence the judge was of opinion, and decided, that the petitioner should prevail, the respondents were not precluded from their appeal, even if it was undisputed that the compilation plan correctly indicated the original \ines of the streets with the subsequent alterations. The construction of the agreement was for the court when read in the light1 of the evidence, but its application to the land was a question of fact resting upon inferences to be drawn from all the testimony. Boston v. Richardson, 105 Mass. 351, 358. Smith v. Vose & Sons Piano Co. 194 Mass. 193, 200. Derby Desk Co. v. Conners Brothers Construction Co. 204 Mass. 461. The issues framed aptly presented the questions of fact to be decided, and which-were decided by the judge before he could determine whether the premises were either wholly or partially within the original area. By the decision, the respondents were aggrieved, and, having regularly availed themselves of the provisions of the statute, were entitled to have the questions submitted to a jury. Nor has this right been lost or annulled, as the petitioner suggests, by the lapse of time occasioned in the prosecution of the [464] exceptions. If, the issues having been disallowed, the proceed- . ings could not properly be certified by the recorder, the reversal of the order leaves them for certification and transmission as framed, with the indorsement of disallowance omitted. Dunbar v. Kronmuller, 198 Mass. 521. It is unnecessary to consider the remaining exceptions as they are waived by the respondents, if a jury trial is granted. The orders made by the Superior Court, therefore, must be affirmed, and the exceptions taken in the Land Court must be sustained. So ordered.