Merry v. Priest

Wait, J. This proceeding for registration of title to land was begun by petition in the Land Court filed October 28, 1912, by Hortense E. Merry, who alleged in his petition that he acquired title by deed dated March 20, 1912. He alleged that he owned in fee simple; and had no knowledge of any mortgage or encumbrance, or of any right, legal or equitable, either in possession, remainder, reversion or expectancy, in any other person. Names and addresses of all owners and occupants of adjoining lands, so far as known to him, were set out. Among them was that of Josephine A. Priest. She filed an answer on May 6, 1913, denying the allegations of the petition, and, in particular, setting up in defence that “she has a right of way over the premises described in the petition.” The record is bare until in February, 1931, Hortense E. Merry moved that Laura M. Merry, to whom he had conveyed in December, 1928, be substituted as the person in whose name title be registered. As of January 15, 1931, Harry W. Priest and Mary B. Sands were allowed to file an answer, which alleged that [598] "they have free and open right of way leading from West Street to their property over the premises described in the petition,” and further alleged that their right of way had been judicially established in proceedings held before the Superior Court in two cases named. The judge of the Land Court found that, appurtenant to the land of the respondents Priest and Sands, there was a general right of way over the land sought to be registered, subject to the right of the petitioner and his successors in title to maintain reasonably well equipped gates at either end of the way over the locus, which the owners and occupants for the time being of the respondents’ land are required to open and close in a reasonable manner when passing through, such way to be used in common with owners and occupants of the servient estate. "Harry W. Priest had no title before 1929. In 1912 he tore down gates put up by the petitioner, and, in May, 1912, the latter filed a bill in equity to restrain him from interfering with such gates. In September, 1912, a master’s report favorable to Priest’s claim as set up here was filed, but it was never confirmed; and no decree was made in the case until March 8,1926, when the bill was "dismissed under order of court.” No other final decree was made. Another bill was filed in 1914 by Josephine A. Priest against Merry and others in the course of the controversy over the right of way. This bill was disposed of by the same order and at the same time as that filed in 1912. Josephine A. Priest is dead. The respondents contend that the decrees dismissing the bills and the findings of the master constitute res judicata which establish the respondents’ claim. The decision in Farnum v. Brady, 269 Mass. 53, that dismissal under order of court such as took place here, although a final decree, does not have the effect of res judicata, is controlling here. The judge was right in ruling that the answer of res judicata was not sustained. See also Wight v. Wight, 272 Mass. 154. Ansara v. Regan, ante, 586, is not in point. The respondents further contend that there was error in the rulings that they had the burden of proving the existence of the full right asserted by them in the way; and in [599] the finding that the petitioner was entitled to maintain gates upon it. No deed creating the right of way was shown. There had never been a common owner of the premises of the petitioner and the respondents. It was admitted that any right rested upon prescription and that for many years owners of the respondents’ land had passed over the petitioner’s. Whether at any time gates or bars had been maintained was in dispute. It is to be noted that the allegations of the answer of Josephine A. Priest filed in 1913 and of the answer filed by the respondents in 1931 are not identical. The first asserts only a “right of way over the premises”; the second asserts a “free and open right of way” from West Street. That street did not touch the petitioner’s land. In these circumstances the ruling was right. The claim of the respondents went beyond merely a right to pass and repass over the land. It may well be that the burden of proving that the title sought to be registered was free from encumbrance rested on the petitioner, but the extent of the encumbrance was an affirmative fact to be proved by those asserting it. Hughes v. Williams, 229 Mass. 467. Nantucket v. Mitchell, 271 Mass. 62, 68. No good ground for vacating the decree would appear, however, if that ruling were wrong; for the evidence is not reported, and the judge has stated that, regardless of rules as to burden of proof, he finds upon all the evidence that the right prescribed was subject to the right of the servient owner to maintain gates or bars at either terminus on the land. Such a finding must stand. Bessey v. Oilman, 242 Mass. 89, and cases cited at page 91. It is true that the deed to the petitioner conveyed the premises subject to existing rights of way, but this does not prove their existence or their extent. The deed to the respondents was silent as to appurtenant rights of way, but this does not show that such rights do not exist. Where rights of way exist, their extent is matter for proof. That gates and bars may be maintained by the servient owner over a right of way is recognized. The power depends upon circumstances. It well might be found wanting where the grant was of a right of way in a lane [600] defined by stone walls pierced in places by bar ways admitting to the lane thus marked out, Dickinson v. Whiting, 141 Mass. 414; or where a carefully drawn deed described the grant, Williams v. Clark, 140 Mass. 238, Hamlin v. New York, New Haven & Hartford Railroad, 176 Mass. 514; but the servient owner retains the use of his land for all purposes except such as are inconsistent with the right granted to the dominant owner or acquired by him, and, if gates or bars are appropriate to facilitate that use, he may establish or maintain them if no material interference with the easement results. Short v. Devine, 146 Mass. 119. Ball v. Allen, 216 Mass. 469. See Atkins v. Bordman, 2 Met. 457; Maxwell v. McAtee, 9 B. Mon. 20; Ames v. Shaw, 82 Maine, 379; Bean v. Coleman, 44 N. H. 539. The decision in Ball v. Allen, 216 Mass. 469, rests upon a finding that bars, in that case, did impose a greater interference than gates and materially affected the use. We have dealt with all the objections argued by the respondents.' As a result the order will be Order of decree for petitioner affirmed.