Burnham v. Mahoney

Rugg, C. J. This suit is brought by the owner of two lots of land to restrain the owner of a third parcel, known as the Mill [527] Lot, from obstructing a right of way claimed to exist over that lot as the servient estate, to define its precise limits and to obtain other relief. The plaintiff’s predecessor in title acquired the two lots, one called the Homestead Lot and the other the Orchard Lot, by separate deeds, in 1855 and 1858 respectively, from the proprietors at that time of all the estates here drawn in question, who later sold the Mill Lot to the predecessors in title of the defendant. The Homestead Lot was described by metes and bounds with reference to “the plan of these premises” and contained after the description these words: “The contemplated street running northerly from this lot, to which the name of Meade Street is given on the plan aforesaid, is to be laid out within one year from the date of this instrument.” The Orchard Lot, which was on the opposite side of a narrow tract of land known as Depot Street and was used by others as a way, was described as “situated ... on Depot and Meade Streets” and its westerly boundary as “in the line of Meade Street.” The Mill Lot is adjacent to the Orchard Lot on two sides and lies between it and a main highway of travel. Subsequent deeds in the several chains of title contain these words: —of the Homestead Lot, “ Together with all rights belonging to said land in and to a contemplated street called Meade Street running northerly from said lot;” — of the Orchard Lot, bounding “westerly on Meade Street;” — of the Mill Lot, “This conveyance is made subject to any and all existing rights of way through said premises.” The master has found that the plan referred to in the 1855 deed of the Homestead Lot as showing a so called Meade Street, “was not introduced in evidence, nor was there any evidence of what the plan contained or the location of Meade Street as shown upon the plan;” and that “there never was any layout of the so called Meade Street, nor was any such street ever built or constructed, nor at the time of the” first deed of the Homestead Lot “was any way defined upon the ground across or over the Mill Lot.” A convenient, if not the only rightful means of access from these two lots to the main highway lies across the Mill Lot, though another sometimes may have been followed. The finding of the master as to the use of a way in substance is that the plaintiff and her predecessors in title since the first deed [528] in 1855 have passed over the Mill Lot according to their necessity and convenience, by a way coincident as to one boundary with the westerly line of the Orchard Lot so far as it extended, but beyond that for the remainder of the distance across the Mill Lot to the main highway, that the route of travel has varied materially in location from time to time as required by the needs of the owner of the Mill Lot, and that there never has been a continuous use of any defined way sufficient to establish a prescriptive right. Apparently the entrance from the Mill Lot to the main highway always has been at a fixed place. The Mill Lot was used up to 1875 as a pasture, and bars were maintained as convenient. Since then it has been used as a saw mill and yard and for other purposes. All the lots are in the town of Mattapoisett. It is inferable from their use and other circumstances that at least until recently they have not been of very great value. When the deed of the Homestead Lot was made in 1855, if there was then a plan showing a definite location of Meade Street, the parties would have been bound by its lines. A right of way by grant would have been created to use the street throughout its length so far as it extended over the grantor’s land or was his to grant. Tufts v. Charlestown, 2 Gray, 271, 273. Driscoll v. Smith, 184 Mass. 221. Downey v. H. P. Hood & Sons, 203 Mass. 4, 10. The grantee would have had a right to have the street constructed as shown on the plan, or as otherwise identified. Thomas v. Poole, 7 Gray, 83. It is not proved with certainty that there ever was such a plan. If it be assumed that there was one, there is no evidence to show how Meade Street was indicated upon it, or that, if it showed a Meade Street, the indication was by exact lines or by an indefinite suggestion. Perhaps commonly the word “plan” as applied to land implies delineation of courses and boundaries. But it is apparent from the phrase of the deed of 1855 that Meade Street was not built or laid out on the face of the earth. It is not unusual even on surveyors’ plans to see proposed streets not yet constructed in any respect indicated by the uncertainty of prophesy and not by the definiteness of established lines. The parties were dealing with a “contemplated street” over a pasture in a small country town, “to be laid outwithin one year.” It well might have been that such a project even on a plan would be manifested by [529] indefiniteness as to precise location or boundaries. The interpretation put by the conduct of the parties upon the deed lends color to this view. The use made by the predecessors in title of the plaintiff at the first, so far as shown, was along the westerly boundary of the Orchard Lot'so far as it extended, and thence across the pasture to the main road where there was a pair of bars. In any event, the way by the deed of the Orchard Lot was established as contiguous to its westerly boundary a distance of two hundred and seventeen feet in 1858, the grantor at that time being the owner of that adjacent land. The words of that deed were equivalent to a covenant that the way was there and estopped the grantor from denying its existence. Parker v. Smith, 17 Mass. 413. Howe v. Alger, 4 Allen, 206, 209. Thus the termini of the way were fixed. These have remained the same during the intervening years. There has been a general use through all the years of a right of passage between these termini, shifting as to place to suit the convenience of the owner of the servient tenement. Deeds in the defendant’s chain of title.refer to the land as “subject to any and all existing rights of way through said premises.” The rational inference from all the facts as to the initial establishment and subsequent use of the right of way is that either the location of the way between its two ends, whether shown on the plan or not, was indefinite at the first, or that it was treated as such by the parties and has been maintained to the present on that footing. When now it has become necessary to define the exact limits of the way, it stands as an undefined right of way which a court of equity may locate in a reasonable manner. Old Colony Street Railway v. Phillips, 207 Mass. 174, 181. McKenney v. McKenney, 216 Mass. 248, 251. The master’s finding as to adverse use by the defendant and his predecessors is expressly to the effect that it did not amount to a denial of the right of the plaintiff and her predecessors to cross the Mill Lot. The force of this finding is not impaired by the further finding that there had been no continuous use in one defined path because of obstructions maintained on the Mill Lot. Such obstructions would not affect a general and unlocated right of passage. The barways were not necessarily incompatible with such rights of passage as the plaintiff and her predecessors in title may have needed. Ball v. Allen, 216 Mass. 469, 473. [530] The defendant’s fourteenth exception was founded on the denial of a request to rule in substance that the contemplated Meade Street was shown on the plan and that there was no evidence where it thus was located. This exception cannot be sustained for the reason that it is not certain that Meade Street was shown on the plan in 1855 as a way with fixed boundaries. An indefinite suggestion of its possible projected location would not prevent the plaintiff from obtaining relief. The master’s finding that there had been no abandonment of the way claimed by the plaintiff cannot be attacked successfully. Mere non-user does not constitute abandonment of a way acquired by grant. Certainly such use as was found in the case at bar is not abandonment. Willets v. Langhaar, 212 Mass. 573, 575. There is nothing in the record to require a decision that the plaintiff has been guilty of loches in bringing this suit. It becomes needless to determine whether the plaintiff may have a way of necessity. All questions which have been argued by the defendant have been decided. His other exceptions are treated as waived. Decree affirmed with costs.