Prentiss v. City of Gloucester

Jenney, J. This case is here on the respondents’ exceptions in proceedings for registration of the title to land on Eastern Point in Gloucester. The exceptions are to certain findings of fact and rulings made, all relating to easements claimed to exist over the petitioner’s land. While the existence of ways public and private by prescription was in controversy, the findings of fact disposed of these contentions and no question relating thereto is now involved. The petitioner’s land in 1887 was included in the Niles farm, a tract of about four hundred acres, bounded easterly and southerly by the ocean, westerly by Gloucester Harbor, and northerly by the Patch farm. Its northerly line was then marked by a stone wall extending from ocean to harbor. Within its bounds, there was a small tract owned by the United States and used as a site for a lighthouse, and a fresh water lake of approximately thirty-six acres separated from the ocean by a barrier beach at Brace’s Cove, which formed part of the easterly ocean frontage. The Niles farm did not bound on any public or private way, although a public way then terminated at a point on its northerly boundary at a gate near the harbor side, where a gate lodge was built in 1888. — 49 — Questions relating to the Niles farm were before the court in Niles v. Patch, 13 Gray, 254. The petitioner’s land consists of a little over twenty acres of upland, and bounds on Brace’s Cove, the ocean, the fresh water lake, and on a line substantially parallel with the shore of the cove. The easements in controversy are in a private way claimed to exist over this land and close to the shore. In 1887, the Niles farm was conveyed to the trustees of the Eastern Point Associates, a voluntary association. The trustees caused William H. Foss to make a plan dated March 1, 1888, which showed a division of the entire tract into lots and also “a considerable number of (unnamed) ways.” One of the ways designoted thereon' led from the gate lodge around the entire shore front, past Brace’s Cove, past the northerly end of the lake and back to a junction with the same way not far from the gate. The plan also showed a road near the ocean from the northerly end of the lake to the boundary of the Patch farm at about the point where a road to Bass Rocks was subsequently built across that farm. There was no evidence that this plan ever was recorded, referred to in any deed or used in any maimer. Under date of September 1, 1888, Foss made for the trustees a series of plans which consisted of an index plan showing an outline of the entire tract with ways substantially as on the first plan, with a division into sections, but with no division into lots, and separate plans of many sections indicated in outline on the index plan. There was no evidence that sectional plans were made of the part of the tract including the land of the petitioner. The sectional plans contained no reference to the index plan. The index and sectional plans were recorded in the registry of deeds in the same book of plans. The index plan has never been referred to in any deed except in those passing title from trustees to their successors in trust, and then only with an express statement that the reference was made for convenience. Under date of May 1, 1889, a lithographic plan was made which was substantially the same as the Foss plan of March 1, 1888. Roads and ways shown thereon were not in fact built at that time, and never have been built exactly as delineated. While the scheme as to roads has been followed in a general way, sometimes material changes have been made in locations; substitutions have been made in some — 50 — cases; and other roads never have been constructed. There was no evidence as to the origin or use of this plan, except that it appeared that it had been inserted in a booklet containing a description of the property. It was produced by the petitioner at the request of the respondents. It did not appear that the plan or booldet ever had been used in the sale of land. In the year 1892, a new lithographic plan substantially like that of 1889 was made. This was distributed to brokers, but it was not recorded, and no reference has been made to it in any deed. The judge found that “It was used as showing in a general way the location of the property, but not as showing any lots which were to be sold in accordance therewith, or as showing the streets and ways as actually constructed, or to be constructed.” The evidence stated in the bill of exceptions as to the making of plans, the construction of streets and the way in which the land was divided into lots when actually sold, amply justified this finding. There were other general plans in evidence, but they do not add to nor detract from the effect of those herein described, and they were not referred to in any deed nor used in the sale of land. In 1889, the trustees of the Eastern Point Associates mortgaged the property, and in 1892 this mortgage was foreclosed, and the property then subject thereto was conveyed to the trustees of the Eastern Point Company. The land has been developed as a “seaside residential property” and roads have been opened over it in various places as needed throughout a period of thirty years. The part of the way around the harbor side from the gateway to a point near the lighthouse is and has been called Eastern Point Boulevard (West), while the shore road along the easterly front is designated as, Eastern Point Boulevard (East). In 1891 a rough road extending through land of the petitioner was cut through the bushes close to the shore. By 1892 this had become passable, and in 1894 the company built a good road on the same location. This road was. materially nearer the shore than Eastern Point Boulevard (East) as shown on the plans. In 1910, it was widened and extended across the beach between the lake and Brace’s Cove to a connectian with a temporary way, which entered Eastern Point Bouleyard (West) near the gate lodge. A road, known as Atlantic Road, which connected through the Patch farm with the Bass Rocks. — 51 — Road, also was built. This did not closely follow any way shown on the plan. Eastern Point Boulevard (East) has never been constructed from Brace’s Cove northerly and westerly of its westerly terminus except for a small section near Brace’s Cove, for the reason that its construction is “impracticable because it would take a twenty foot drop” at one point. Since 1887 when the Eastern Point Associates acquired title, there have been between seventy and eighty conveyances by said associates or their successors in title on the Eastern Point Boulevard (East) and the Eastern Point Boulevard (West) or on ways connected directly or indirectly therewith. The bill of exceptions states that “Many of these deeds referred to small plans recorded therewith which showed the lot of land conveyed, the abutters, the bounding streets, and the adjacent boulevard or street appearing as open in each direction and disclosing a small part of it beyond the property in question at both ends.” The only landowners who are here presenting exceptions to the rulings of the Land Court, and whose rights are in question, are Joseph O. Procter and others, trustees, referred to hereafter as Procter; George O. Stacy; Herbert E. Smith and Arthur W. Smith, referred to hereafter as Smith; and the city of Gloucester. Hence there is no necessity of considering what rights of way, if any, other landowners have, except so far as their existence may be pertinent to the exceptions of these respondents. The contentions made rest in part on the claim that Eastern Point Boulevard is a single way, rather than two distinct easements. The fourteenth request for ruling was, “For the purpose of determining the extent of rights of way impliedly granted to purchasers of land on Eastern Point, Eastern Point Boulevard (East) and Eastern Point Boulevard (West) are to be treated as a single road.” The refusal to make this ruling was justified by the evidence which warrants the consideration of rights in the boulevard on the basis that it consisted of two independent ways. It was so distinguished in nearly all deeds and is so shown on all plans. When not so distinguished in the deeds, the plans therein referred to designate the boulevard as east or west in the manner hereinbefore stated. The fact that the point of demarcation was not well defined does not require a contrary conclusion. This result is consistent with the thirteenth ruling made at the request — 52 — of the respondents, that a change in the name of a way after a certain point is reached is immaterial, and with the finding that they are continuous. The order for registration imports a finding of all the subsidiary facts essential to support it and consistent with the express findings. Adams v. Dick, 226 Mass. 46. 1. The Procter lots. These lots are three in number; one, situated on Atlantic Road and first conveyed in 1910, is in the extreme northeasterly corner of the entire tract and adjoins the Patch farm. Atlantic Road was not shown on any of the original plans of the entire tract, but is a way constructed in 1910 in substitution for a way shown on the plans, although not on the locatian of that way. The plan referred to in and recorded with the deed of this lot is one of the “small plans” hitherto described and does not show any way over the petitioner’s land. The other Procter lots are on Eastern Point Boulevard (West) and were originally conveyed by deeds given in 1888 and 1890. These deeds described the lots as being on a plan of section J of land of the Eastern Point Associates, but that section did not include any part of the petitioner’s land nor show any ways thereover. The principle governing the rights of grantees of lots, bounded on a way shown on a plan was established by Regan v. Boston Gas Light Co. 137 Mass. 37, and Pearson v. Allen, 151 Mass. 79, which declared that, in the absence of an express grant, where large tracts of land were plotted into numerous lots bounded on many different ways, a “grant by implication of an onerous servitude upon other land of the grantor, not necessary for the enjoyment of the land conveyed, is not to be presumed unless such is clearly the intention of the parties;” that a reference to a plan in a deed, although accompanied by its use for description or bounds, does not result in the conveyance of rights not necessary for the enjoyment of the premises, in the absence of an intent appearing to that effect; that the only necessity contemplated in ordinary cases is that of access to public highways; and that the great desirability of a way for purposes of prospect, is not a sufficient reason to extend or modify the general rule. In determining the intent, the entire situation at the time the deeds were given must be considered. For example, whether the ways in question merely existed on paper, or were then constructed on the ground; whether they were then actually used — 53 — as appurtenant to the granted premises; or whether they were remote or in close proximity .¿¿The doctrine of Regan v. Boston Gas Light Co. swpra, and Pearson v. Allen, supra, is not limited nor impaired by Boland v. St. John’s Schools, 163 Mass. 229, New England Structural Co. v. Everett Distilling Co. 189 Mass. 145, Downey v. H. P. Hood & Sons, 203 Mass. 4, and Ralph v. Clifford, 224 Mass. 58. See also Drew v. Wiswall, 183 Mass. 554, and Stevens v. Young, 233 Mass. 304. Where land is bounded on an existing way not defined by plan referred to in the deed, the same considerations govern. An implied grant of way is limited to that necessary for the enjoyment of the premises; and the clear intent of the parties governs. It frequently has been said that there arises by estoppel, which is the basis of the doctrine of implied grant, a right to use a way for its entire length. Downey v. H. P. Hood & Sons, supra, and cases cited. It is not now necessary to consider whether there may not be some limitation to this broad proposition, for example, where the way is of considerable length, and does not at its distant end connect directly or indirectly with a public way. Applying these rules to the ways claimed as appurtenant to the Procter lots, it is clear from the findings of the judge that no way over the petitioner’s land was necessary for access to any public way. No such way is shown on the plans referred to in the deed of these lots, and the lots do not abut on any way shown on any plan as crossing said land, or on any way actually existing there-over. Hence it is clear that there is no right of way over the locus as appurtenant to the Procter lands. The ways shown on the plans, and as constructed, did not provide for actual access to the ocean; and except where they bordered on beaches, the boulevards were behind tiers of shore lots. Where they were behind beaches, except on Eastern Point Boulevard (West), there was a strip of land between the way and high water mark. It is argued that the index plan, with which is recorded the detailed plans of some of the sections shown thereon, ties the plans together, so that although in fact distinct, they must be considered as one. The language used in the deeds does not state nor imply that they are to be so treated. The fact that they relate to distinct parts of one large tract, and may be fitted together, does not render them one in legal effect. Moreover, there is no — 54 — sectional plan showing the petitioner’s land. An index plan of the nature and use described does not create nor enlarge easements, when not referred to for that purpose in the deeds under which title is claimed. 2. The Stacy lots, five in number. These, situated in sections I and J on the index plan, are between the fresh water lake and Gloucester Harbor, and all are on Eastern Point Boulevard (West). They also abut upon other streets in which no rights of way are in controversy under the exceptions. The plans referred to in the deeds and recorded therewith are “small plans” as hereinbefore described, and they do not show the land of the petitioner, nor indicate the existence of any way over the same. The deed contained the following provision: “ All said parcels of land are conveyed together with the right to use the streets on which said lots are bounded in common with others entitled to use the same so far as said streets are now open or may hereafter be opened.” The rights of way appurtenant to these lots being defined by the deed, no implied easement can arise. Since it has been determined that Eastern Point Boulevard (East) and Eastern Point Boulevard (West) are in legal effect distinct ways, no easement was created over the petitioner’s land, as the Stacy lots did not bound on any way in controversy extending thereover. 3. The Smith lot, an interior parcel situated on Farrington, St. Louis and ICenwood avenues, was originally conveyed to Laura Smith. The deed to her, dated April 8, 1910, referred to a “small plan” showing no ways over the petitioner’s land. There was no express grant of a right of way. The land did not bound on any existing way near or over the petitioner’s land; and under the findings of the judge, no way thereover was necessary for access to the granted premises. Clearly there was no implied grant of a right, over the petitioner’s land as appurtenant to this lot. No question of the existence of ways by dedication is involved. Dedication implies public rights only. Since St. 1846, c. 203, § 1 (now R. L. c. 48, § 98), no public way can be so created. Hayden v. Stone, 112 Mass. 346. Commonwealth v. Coupe, 128 Mass. 63. McKenna v. Boston, 131 Mass. 143. Attorney General v. Onset Bay Grove Association, 221 Mass. 342, 347, 348, 350. See Hinckley v. Hastings, 2 Pick. 163, 164, note, and cases collected in 18 C. J. — 55 — 38. Therefore the respondents get nothing by reference to deeds of other lots. Even if it be assumed that the deeds of the Taft and Rouse parcels gave the grantees rights of way over the locus which those grantees, who are still the owners, do not appear to maintain, the respondents are not aided. The cases as to dedication of land for public landings, shore fronts, beaches, parks, squares and for light, air and prospect do not apply, as no such question is involved. See Attorney General v. Tarr, 148 Mass. 309; Attorney General v. Vineyard Grove Co. 181 Mass. 507; and Attorney General v. Onset Bay Grove Association, supra. 4. The city of Gloucester. On March 12, 1903, the trustees of the Eastern Point Company in consideration of $1 and other valuable considerations executed and delivered to the city of Gloucester an instrument in the form of deed, duly acknowledged and recorded, in which they “authorize, permit, give and grant to the said City of Gloucester the right to lay, relay and maintain water pipes and place hydrants for the purpose of conveying and using water in or under certain private ways owned by us and situated in the said lands at Eastern Point in said Gloucester, viz: all ways now existing and in use through said lands, and also in or under any and all ways which may hereafter be laid out or constructed by said Company or its Trustees through said lands.” No water pipes have been laid by the city under the terms of this deed. When it was given, a way was in existence and in use over land now owned by the petitioner, as already stated. Since the petitioner has taken title, he has built a new way under the requirements of his deed on the location of Lincoln Avenue and in continuation thereof; and he also has constructed a way along his westerly boundary near the fresh water lake and substantially in the location of Lake Avenue as shown on the general plans. The judge ruled without any exception by either the petitioner or the respondents that the petitioner’s land is subject to the rights of the city of Gloucester, under the instrument hereinbefore referred to, in Lincoln and Lake avenues, and no question as to the correctness of this ruling is before the court. He further ruled that the city had no easement or other rights in the road which had been built through the petitioner’s land and near the shore, because he interpreted the instrument as creating a license “which — 56 — if, and when, acted upon would ripen into an easement.” We think that this ruling was wrong, and that the exception thereto must be sustained. See Gray v. Cambridge, 189 Mass. 405. This instrument gave to the city for the purposes defined therein an easement in the ways then in existence and in use. Its effect as to ways which might thereafter “be laid out or constructed” by the grantors or their successors in trust is not now considered. The petitioner’s claim, that the grant to the city is invalid for the reason that it refers to ways to be laid out and constructed by the trustees, can now be disposed of. He contends that it recognizes the existence of ways over land in which the dominant estate is in the same owner; However, it is well settled that for the purposes of description, exception or grant, either express or implied, a way as actually worked and used may be referred to in the creation of rights in land. See Gorton Pew Fisheries Co. v. Tolman, 210 Mass. 402, at pages 408, 409, 411. The refusal to make the specific findings of facts requested was not the subject of exception. Puffer Manuf. Co. v. Yeager, 230 Mass. 557. The respondents, having had full opportunity to be heard, are not aggrieved by the refusal of the judge to give further notice to others, who did not appear in the Land Court. Their rights were not affected thereby. The exceptions not specifically described, all of which relate to requests for rulings, have been examined with care. They are disposed of by the considerations herein stated, or by the findings of the judge, and need not be considered separately. We find no error in their refusal. All of the exceptions aside from that relating to the rights of the city of Gloucester are overruled, and its exceptian relating solely to the right to lay, relay and maintain water pipes and place hydrants is sustained. So ordered.