DELIA DWYER vs. METROPOLITAN DISTRICT COMMISSION.

CROSBY, J. This is a petition for a writ of mandamus to require the respondents, who constitute the metropolitan district commission, to grant to the petitioner an entrance from Fellsway West, in Medford, to her land. The case is before this court upon exceptions to a ruling and order made by a single justice, in accordance with which an order was entered dismissing the petition. The case was heard upon the petition, answer, auditor's report and supplemental report.

On March 24, 1899, Ralph K. Abbott and others, predecessors in title to the petitioner, conveyed to the Commonwealth a strip of land adjoining the petitioner's land, lot B, described in the petition; the deed contained the following provision: "And for the above named consideration and the further consideration that said Commonwealth . . . shall construct along the boundary line of said parkway, within said parcels of land a roadway and walk to which we and our heirs and assigns (owners or occupants of adjoining lands now of grantor) shall have free access with the right to use the same for the purposes of a way, subject to such reasonable rules and regulations as may from time to time be made by the Metropolitan Park Commission [now Metropolitan District Commission] . . . or by any other board or department having for the time being the control and management of said parkway." The roadway in question, now known as Fellsway West, was constructed by the commission under the provisions of St. 1894, c. 288 (G. L. c. 92, § 35). The petitioner's titles to lots B and C were acquired by separate deeds. Her title to lot B was registered in the Land Court and is "subject to a right of way twelve feet wide extending along the

Page 576

westerly line from her rear land to Fellsway West." The provisions relating to this right of way in her certificate of title are as follows: "Said Lot B is subject to and has the benefit of the restrictions set forth in a deed given by Ralph K. Abbott et al to the Commonwealth of Massachusetts . . . and so much of said Lot B as is included within the limits of the passageway as shown on said plan is subject to its use by the owners and occupants for the time being of said Enright land and of said Dwyer land as a right of way on foot and with teams."

The respondents admit that the petitioner is the owner of the land described in her petition as lot B, which abuts on the boulevard in Medford known as Fellsway West. The boulevard, with the walk and the planting space, belongs to the Commonwealth and is a part of the metropolitan parks district (G. L. c. 92, § 35) which is under the jurisdiction of the respondents. The petitioner also owns lot C, which is on the corner of Fellsway West and a street known as Fern Road, and adjoins lot B. The total frontage of these two lots on Fellsway West is about eighty-three feet.

The auditor made the following findings: "although said land of the petitioner was acquired by her in several parcels, the petitioner has for a period of years owned the entire parcel in fee, used the land as a unit, and has built no fence or made other evidence of demarcation to indicate that the land was regarded otherwise than in its entirety . . . in observing the premises of the petitioner there is evident a clearly defined and well worn pathway or small roadway running in a northerly direction from an entrance point on the petitioner's land directly adjoining Fern Road, for a short distance, then turning and running in a westerly direction across that portion of the petitioner's land which she described as Lot B, and then turning again and running in a northerly direction across the rear land owned by the petitioner . . . although the petitioner had been using this entrance over a period of thirty years, more or less, no formal permission to use this entrance had . . . been granted by the respondents" before

Page 577

December 6, 1928. On that date "the respondents granted to the petitioner a right of entrance to" lot C "situated on Fellsway West." To "Fern Road, leading from her land, at a point a few feet distant from Fellsway West, the petitioner has an entrance approximately twenty feet wide." The auditor further found that the respondents by their action of December 6, 1928, have granted the petitioner a suitable entrance to lots B and C provided they are considered as one parcel of land, and not as two separate and distinct lots; that although she has not been granted an entrance to lot B directly from Fellsway West, she has been granted an entrance to other land of hers adjoining that described in the petition; that the granted entrance is a suitable one for the reasons that she is using her two lots B and C as one parcel, and has been using the granted entrance for many years as a means of access to her other land; and that such entrance is suitable and adequate for her so long as the ownership and use of the land remain as it is at the present time.

It is the contention of the petitioner that, as lot B abuts on a public way, she has a common law right of access directly to Fellsway West, and also that she has such a right by the provisions in the deed to her predecessor in title. She further asserts that the fact that she owns lot C is immaterial, that she is entitled as matter of law to have designated to her by the respondents a way of access directly from the roadway to lot B; that she acquired title to these lots under separate and distinct grants as to each of which she became entitled to entrance from Fells-way West, and she relies upon a statement in the decision in Anzalone v. Metropolitan District Commission, 257 Mass. 32, 36, as follows: "A general right of way appurtenant to a tract of land, not limited in its scope by the terms of the grant, appertains to every portion of the tract, and upon a division of the land a right of way will exist in the owner of each of the lots into which it may be divided. It is not limited to the purposes for which it was originally designed, but is available for any reasonable use to which the property is or may be put."

Page 578

The soundness of the rule so stated cannot be doubted. G. L. c. 92, § 35, under which the roadway was constructed, reads in part as follows: "The commission shall have the same rights and powers over and in regard to said boulevards as are or may be vested in it in regard to reservations and shall also have such rights and powers in regard to the same as, in general, counties, cities and towns have over public ways under their control." Section 37 of the same chapter provides that "the commission may make rules and regulations for the government and use of the reservations or boulevards under its care." The commission has established rules and regulations for the government and use of the Middlesex Fells reservation of which Fellsway West is a part. The first of these rules and regulations reads, "No person shall enter or leave the reservation over private property, but only at the regularly designated entrances."

The petitioner now has a way of access to her premises by the entrance which the commission granted to her on December 6, 1928; thereby the common law rule that an abutting owner has a right of access to the highway as well as the reservation in the deed from Abbott and others to the Commonwealth is satisfied. In addition she has still another way between Fellsway West and lot B - from Fern Road, a public way upon which the easterly portion of her land abuts for a distance of one hundred and forty feet, and this street leads into Fellsway West. The auditor found "That to Fern Road, leading from her land, at a point a few feet distant from Fellsway West, the petitioner has an entrance approximately twenty feet wide." In Anzalone v. Metropolitan District Commission, supra, it was said (pages 36 and 37), "If land adjacent to a roadway constructed under St. 1894, c. 288, should be divided into lots in separate ownership, each owner would have a right of access from his lot to this roadway." The rule so stated is not applicable to the facts in the case at bar as the whole of the petitioner's land abutting on Fellsway West of which lot B is a part is held and used by her as one parcel. If lot B should be sold to another the rule above stated would be pertinent and would entitle the purchaser to right of access to Fellsway West.

Page 579

It was the respondents' duty to grant the petitioner a way of access to the roadway subject to such reasonable regulations as to location, construction and use as they deemed necessary for the public safety and convenience. Anzalone v. Metropolitan District Commission, supra. The facts, that the ownership of lot B and of other land owned by the petitioner was acquired by separate deeds, and that the easement imposed upon lot B was in favor of other land of the petitioner in the rear and of other adjoining owners not parties to the petition, are not sufficient to require the commissioners to grant to the petitioner a right of access to lot B directly from Fellsway West. There can be no doubt that rule one, established by the commission, is valid and in the case at bar we are of opinion that it was properly construed. Metropolitan District Commission v. Cataldo, 257 Mass. 38, 42. Burke v. Metropolitan District Commission, 262 Mass. 70. See Van Poppel v. Boston Elevated Railway, 258 Mass. 389, 396.

The denial by the respondents of the application for the designation of an entrance to the premises did not exclude the petitioner from access to the roadway. In effect it amounted to a refusal to grant her a right of access in addition to one previously granted her on December 6, 1928.

The rulings requested could not properly have been given. The order dismissing the petition fails to show any error of law.

Exceptions overruled.