Kaatz v. Curtis

De Courcy, J. The only question before us on this appeal from the final decree is whether the decree is within the scope of the bill and is supported by the facts found by the master. E. W. Burt & Co. v. Coes & Young Co. 212 Mass. 134. The record is not clear. The testimony of certain witnesses, referred to in the master’s report as being annexed thereto, is not in fact printed; and the same is true of some of the exhibits in the case. We can consider the printed statement of facts agreed upon by counsel only so far as it appears to embody the evidence that was before the judge whose decree is appealed from. Robinson v. Brown, 182 Mass. 266. There were objections to the master’s report, but so far as appears in the record no exceptions were filed. The master finds the following facts: One John Colby was the owner of a large tract of land in Lawrence and attempted to dispose of it in small parcels or building lots. At different times he [314] made plans of all and of portions of the tract, and recorded some of them. Colby died on October 22, 1908. By his last will he devised to Christine Hanson (now Christine Curtis, and herein called the defendant), “two lots of land with buildings thereon situated at the corner of Ferry and East Pleasant Street also bounded on John Street, said lots being lots ‘A’ and ‘B’ona plan of ‘Lots at Cottage Park belonging to John Colby,’ dated April, 1903, and recorded in the Registry of Deeds for the Northern District of Essex, Book 244, Page 600.” The executor of Colby’s will, under a license obtained from the Probate Court, by deed dated January 3, 1911, conveyed to the plaintiff “lots 150 and 161 on ‘Plan of Lots at Cottage Park belonging to John Colby’ which said plan being [sic] recorded in the Registry of Deeds for the North District of Essex, book 244,- page 600. Lots 150 and 161 are bounded and described as follows: southerly by John Street one hundred sixty (160) feet; westerly by East Pleasant Street forty (40) feet; northerly by land of parties unknown one hundred sixty (160) feet; and easterly by Midland Street forty (40) feet.” The master’s report specifically states: “I find that both the plaintiff and the defendants took title according to the description contained in the plan recorded in book 244. ” By a well settled rule of construction the plan referred to became incorporated in the deed to the plaintiff and in the devise to the defendant; and the particulars appearing thereon and applicable to these lots are to be regarded as if fully set forth in the instruments under which they respectively derive title. As between these parties the location arid dimensions of the private way designated John Street is fixed by the plan. Each owns the soil thereof opposite his land to the centre of the way, with a right of way over the other half. Morgan v. Moore, 3 Gray, 319. Farnsworth v. Taylor, 9 Gray, 162. Boston Water Power Co. v. Boston, 127 Mass. 374. McKenzie v. Gleason, 184 Mass. 452. New England Structural Co. v. Everett Distilling Co. 189 Mass. 145. Gould v. Wagner, 196 Mass. 270. Downey v. H. P. Hood & Sons, 203 Mass. 4. As Colby, the owner of the entire tract, saw fit to define John Street on this plan as running through land occupied in part by his barns, the defendant who succeeds to his title is estopped, as against this plaintiff, from denying the location of the way so established. [315] The defendant’s contention that the street as now used, encroaching upon the land of the plaintiff, has been substituted as a public way by prescription for the private way defined by the plan, is disposed of by the finding of the master that the travel thereon has not ripened into a right of way or easement. In the absence of the evidence we cannot say that this finding is wrong. As John Street is not a public but merely a private way, the plaintiff has a right to the use of the surface for the usual purposes of such a way and a right to enter upon and prepare it for that use. See Atkins v. Bordman, 2 Met. 457, 467. Decree affirmed.