Studley v. Kip

Carroll, J. The petitioner is the owner of a tract of land, bounded northerly by a way called Girard Avenue and westerly by Hiawatha Avenue, in the town of Falmouth. The respondent Kip owns the adjoining land on the westerly side of Hiawatha Avenue. In 1904, by a decree of the Land Court in the case of Kip, petitioner, there was registered as appurtenant to his land a right to use the whole of the way called Hiawatha Avenue “ in common with others entitled thereto.” This way was twenty feet wide; the boundary line between the Studley and Kip estates being in the middle of the way; the Kip land was subject to the rights of [243] and lawfully entitled to use the twenty foot way. In the petition brought by Kdp he specifically claimed an appurtenant right of way in the twenty foot strip. Citation was duly served on the then owner of the Studley land, who appeared, but did not contest, and was defaulted for failure to file an answer. In the present case the petitioner Studley admits a right of way over a six foot strip only, on Hiawatha Avenue on the easterly side of the middle line thereof; and claims as appurtenant a right of way over a similar six foot strip on the Kip land, and offered “ to show that Hiawatha Avenue has in fact been for many years twelve feet wide ” “ extending easterly from the westerly boundary of the right of way ... to land of the petitioner ” and extending “ from Vineyard Sound to Clinton Avenue, that this right of way has only been used as such and for twelve feet wide for a very long period of time both before and after the registration of the ” Kip title. He also offered to show that his predecessor in title, one Monahan, who was the owner when Kip registered his title, was informed and believed that the claim of Kip was only for a twelve foot right of way; that because of this fact he offered no objection to the registration of Kip’s land, and that no evidence was offered by Kip. The court ruled that the petitioner could not introduce this evidence so far as the rights of the Kip estate are concerned, to which ruling the petitioner excepted. It was further decided that the former decree in the Kip case determined the rights of Studley and Kip in the land in question, and that there is appurtenant to the Kip land a right of way over a ten foot strip of the petitioner’s land easterly of the middle of Hiawatha Avenue. The petitioner’s predecessor in title who owned the land when the former decree in the Kip case was entered, was duly notified.of the proceedings; his land was bound by that decree and the petitioner who claims under him took the land subject to the rights of the parties as determined in the former decision. G. L. c. 185, § 45. Briggs v. Treasurer & Receiver General, 224 Mass. 46. Allison v. Donovan, 244 Mass. 233. [244] It is immaterial in this proceeding what induced the petitioner’s predecessor in title to refrain from contesting the Kip petition, or the construction put on the earlier deeds by the Land Court. The decree is conclusive: the petitioner and the respondent Kip are bound by it. Exceptions overruled.