Ziendarski v. Baranowski

Braley, J. The lots shown on the plan forming part of the record were owned as an undivided tract by one Amedee Desmarais and no right of way in connection therewith existed. On November 9, 1910, he conveyed to Ephraine Lavallee and Delphine Lavallee his wife, as tenants in common, lots F and G, describing them as one parcel abutting on Walnut street on the southerly side. June 24, 1911, Desmarais also conveyed to the Lavallees lots C, D and E. By the plan lot C on the west abuts on Market street, and lot D on the east is contiguous to lot F, while lot F on that side is contiguous to lot G. The deed described lots C and D.as one tract, and lot E, which abuts southerly on Walnut street, is on the east also contiguous to lot F. It was described as a separate tract, and after the words, "thence easterly along said Walnut St. fifteen feet to place of beginning,” which ended the bounding of lot E, the deed contained the following language: "also a right of way over a strip of land 15 feet in width on the westerly side of this tract extending northerly from said Walnut St. about ninety seven feet.” This strip is designated as A on the plan. The grantees thus acquired by grant a right of way from C, D and E to Walnut Street. George v. Cox, 114 Mass. 382. The Lavallees July 13, 1922, conveyed to the plaintiffs, who are husband and wife, lots D, E and F, to hold as tenants by the entirety, describing the land as one tract. The description or boundaries contain these words, "an iron pin at the southeasterly corner of a right of way which we have leading from our property to said Walnut street; thence northerly ninety-six feet more or less along the easterly side of said right of way to an iron pin.” It may be conceded, as the defendants contend, that there was no express grant of a right of way over A. The habendum however reads, "with all the privileges and appurten [424] anees thereto belonging.” The right of way therefore passed to the plaintiff as appurtenant to the lands conveyed. Kent v. Waite, 10 Pick. 138. Underwood v. Carney, 1 Cush. 285. Whitney v. Lee, 1 Allen, 198. Oliver v. Dickinson, 100 Mass. 114. Boland v. St. John’s Schools, 163 Mass. 229. The deed of August 8, 1912, from Desmarais to the defendants of lot B and “Also the right of way as mentioned in deed” to Ephraine and Delphine Lavallee, dated June 24, 1911, did not affect the rights of the plaintiffs derived by mesne conveyance under the prior grant to the Lavallees. It is found on evidence not reported that, while the easterly boundary of lot B may be uncertain, it does not approach within five feet of the boundary between A and E, and when the bill was filed the defendants had no title to the soil of that part of A which adjoins lot E. But quite apart from these findings Desmarais at the date of the conveyance to the defendants held title subject to the rights theretofore granted to the Lavallees. The erection of posts along the line between A and E was an unlawful interference with the plaintiffs’ easement entitling them to relief. O’Brien v. Murphy, 189 Mass. 353. The decree, establishing the way and directing the defendants within a time stated to remove the posts, and perpetually enjoining them from obstructing the plaintiffs’ use of the way, must be affirmed with costs. Ordered accordingly.-