LILLIAN U. WOOD vs. JAMES CULHANE & another.

CROSBY, J This bill in equity is brought to enjoin the defendants from trespassing upon a forty-foot way on the northerly side of land of the plaintiff and extending westerly from North Harvard Street, in Boston, to the William F. Smith playground, owned by the city of Boston. It is the contention of the plaintiff that the defendants have no rights in the way, while the defendants assert that they are the owners in fee to the center of the way, and that they have a right of way over it where it abuts upon their land. The case was heard by a judge of the Superior Court who filed "Findings of fact, rulings of law, and order for decree." In accordance therewith a final decree was entered by which the defendants were perpetually enjoined from trespassing upon the way.

As the evidence is not reported, the only question before us is whether the specific facts found are inconsistent with the general conclusion reached. Cleveland v. Hampden Savings Bank, 182 Mass. 110, 111. Knowles v. Knowles, 205 Mass. 290,292,293. The trial judge made the following

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findings: The heirs of one Holmes formerly owned a large tract which included lands now owned by the plaintiff, the defendant Mary C. Culhane, and the President and Fellows of Harvard College. "In 1870 a part of the Holmes land, now a part of Soldiers Field, was conveyed and with it 'a right of way appurtenant . . . over a strip of land 40 feet wide laid out for a street.' This is the 40-foot way involved in this suit and is described in this deed, which is referred to as bounding the parcel conveyed on the south along its entire course of 591 feet. In 1890 the lot now owned by the defendant Mary C. Culhane . . . was conveyed to Mary Sullivan, and the description in the deed, except for some small changes in the distances, conforms exactly to the description in the deed to Mrs. Culhane, which latter description is as follows: - 'land in Brighton, situated on North Harvard Street, bounded and described as follows: Beginning at a point in said street where it meets the southerly line of a 40-foot way; thence running southwesterly 114.25 feet on said North Harvard Street; thence turning and running northwesterly 154.47 feet, more or less, and bounding on land now or late of one Woods; thence turning and running northeasterly 100 feet, bounding again on said land now or formerly of Woods to the southerly line of the 40-foot way before mentioned; thence turning and running southeasterly on the southerly line of said 40-foot way 209.74 feet to the point of beginning.'" None of the deeds in the defendants' chain of title contained any reference to any rights in the way, and there was no intention at the time of the conveyance to Mary Sullivan to create rights in the way for the benefit of the Culhane lot. It is manifest that this particular description, which begins at the southerly line of the way, runs around the lot to the southerly line again, and then turns and runs on the southerly line to the place of beginning, excluded the way, and that the grantor retained the fee in it. Hamlin v. Attorney General, 195 Mass. 309. See also Gould v. Wagner, 196Mass. 270; Erickson v. Ames, 264 Mass. 436.

The judge also found: "In 1892, a part of the land now owned by the plaintiff, and including 'all the right, title and

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interest and estate in and to' the 40-foot way, was conveyed to one White. In this deed, the 40-foot way is described as a private way 'delineated on the plan hereinafter mentioned.' There is a further recital in this deed that 'said premises are shown on a plan to be recorded herewith.' The plan was recorded in 1892 . . . which shows the relative location of the 40-foot way and the parcels of land . . . referred to White simultaneously conveyed to the plaintiff's father, who in turn in 1914, conveyed, together with other land, to the plaintiff. In his deed to her is the following language: 'A portion of the granted premises is subject to a right of way 40 feet in width to and from said North Harvard Street for the benefit of the said Mary Sullivan's (a predecessor in title of Mrs. Culhane) lot and for the benefit of a strip or parcel of land 109 feet in width, bounding on the northeasterly side of the premises herein conveyed for a distance of 744.98 feet, belonging to said President and Fellows of Harvard College.'" The judge further found that "For at least thirty years, there has been a fence of some sort on he common line of the Culhane lot and the 40-foot way extending in from North Harvard Street to the end of the Culhane land. There was a small opening in this fence at or near the side door of the house on the Culhane lot. When the plaintiff's father held title to the 40-foot way, permission was granted to Mrs. Sullivan, the then owner of the Culhane lot, to remove a portion of this fence so that automobiles might drive in and upon the Culhane lot for parking purposes. The parking of automobiles was only upon the occasion of athletic contests and entertainments upon Soldiers Field, and, at the conclusion of these temporary uses for parking purposes, the part of the fence which had been removed was replaced. From time to time since Mrs. Culhane acquired title to her lot, which was in November, 1924, the defendants have parked automobiles, or caused them to be parked, in and upon the 40-foot way. This has been done against the objection of the plaintiff."

In view of the finding that "No rights in the 40-foot way, so far as the Culhane lot is concerned, have been acquired by user or otherwise and the deeds of this lot convey no rights

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in said way," it is plain that the defendants derive no title in the way by express grant, nor can any easement over it be held to exist by implication. It follows that the acts of the defendants were without right, and that the plaintiff is entitled to the relief which she seeks. The cases cited by the defendants are distinguishable in their facts from the case at bar.

Decree affirmed with costs of the appeal.