CLARA A. HILL vs. WARNER V. TAYLOR & another.

CROSBY, J. This is a petition to register title to three parcels of land situated at Megansett, in the town of Falmouth. The petitioner also claims as appurtenant to the land certain rights of way over Cedar Avenue, leading from the road, shown on a plan as "Boulevard," to the shore. A Land Court examiner filed a report and an abstract of title. At a hearing before a judge of the Land Court Warner V. Taylor (herein called the respondent) excepted to the denial of his requests for rulings and to the granting of certain requests for rulings filed by the petitioner. The exceptions relate to the location of Cedar Avenue as the boundary of the petitioner's land, and her rights in that avenue.

The findings of fact made by the judge of the Land

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Court will stand if warranted by the evidence with justifiable inferences. "The general finding in favor of the petitioner imports a finding of all subsidiary facts and the drawing of all permissible inferences essential to that conclusion." United States Leather Co. of Massachusetts v. Lynn, 293 Mass. 15. Although the case presents for interpretation the construction of written instruments, the significance of the words therein is to be considered in view of the time and circumstances in which they are used, and the intent of the parties is usually a matter of fact. Accordingly, weight must be given to the findings made. Erickson v. Ames, 264 Mass. 436, 441. Sutcliffe v. Burns, 294 Mass. 126, 131, 132.

Besides other facts, the trial judge found that the land sought to be registered consists of three parcels - one, designated in the decision of the judge of Land Court as "parcel one," is a lot bounded northerly on land of the respondent by the southerly line of Cedar Avenue, a curving way; another, designated in the decision of the judge of the Land Court as "parcel two," is an adjoining lot on the south that extends from the boulevard to a point near high water mark; and a third is a parcel of upland and flats running westerly from said point near high water mark, and bounded northerly on land of the respondent, being the end of Cedar Avenue, and flats of the respondent on which there is an ancient wharf.

The decision by the judge of the Land Court includes the following: "There was an old way, known as the road to the wharf, leading from a public way at some distance to the east across the present land of the petitioner to a point about opposite his [sic] present house, and thence down through a steep gully to the wharf. From about opposite the house an old logging road branched from the wharf road southerly to and across what is now the boulevard or present town way. The wharf, which has long ceased to exist as a wharf, was once used by coasting schooners and packets, but not at all for over fifty years; and there has been no use of the road within that period as a means of access to the wharf. It was a private road,

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and there appear to be no rights in it except for the parties to this case. . . .

"There is on the ground a travelled way as shown on the filed plan which follows the course of the old logging road from the present town road to a point opposite the respondent [sic] house, and thence down to the shore follows the old road to the wharf. The road to the wharf extended to the northerly line of the petitioner's third parcel, which had by grant an appurtenant privilege of the wharf.

"February 9, 1903, Mrs. Mary Donkin, then owner of both the land now of the respondent and of the remaining land of the petitioner, conveyed to her sisters-in-law what is now the petitioner's first parcel, described as bounding by the southerly line of Cedar Avenue. Mrs. Donkin had a plan made by E. L. and C. L. Hayward, engineers.... showing the parcel conveyed February 9 as bounding northerly by Cedar Avenue, a way between the boulevard and the shore laid out on a consistent curve, with courses and distances from the boulevard to the stone monument near the shore which marks the southwest corner of the petitioner's first parcel and the northeast corner of her third parcel. The description in the deed of February 9 was taken from this plan, but it is not referred to and was not recorded until 1920. The Cedar Avenue shown on this plan follows substantially the course of the travelled way. It is however twenty feet wide whereas the travelled way is only about five feet wide, and it makes a regular curve thereby diverging from the travelled way in two places. From a point about eighty feet west of the boulevard for a distance of about seventy feet the southerly line of the travelled way is about a foot to the south of the southerly line of Cedar Avenue on the recorded plan, and at the westerly end the travelled way leads by irregular lines, within the limits of the recorded plan avenue, up through a steep gully with bayberry bushes and gravelly banks on either side, to near the top of the rise, and then swings to the north for a distance of about seventy-five feet, making a sharp curve of which the furthest distance of its northerly

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line from the northerly line of the Cedar Avenue of the plan is about fifteen feet.

"February 19, 1903, Mrs. Donkin conveyed to one Noyes the second parcel now of the petitioner. The land is described as bounding west and east of the first parcel, northerly by the southerly line of 'Cedar Avenue.' The courses and distances given are those of said plan, but the plan is not referred to and . . . was not recorded until 1920."

On August [Note p113] 25, 1920, "Mrs. Donkin, still owner of the fee in the way (whether the travelled way or the Cedar Avenue of the plan) and adjoining land now of the respondent to the north, made a grant to her sisters-in-law, then owners of the petitioner's first parcel, of a right of way as appurtenant to said first parcel from any buildings thereon to and from the boulevard over Cedar Avenue as shown on said plan which was then recorded with the grant. This grant was upon condition that whereas because of the (land locked) location of their land (said first parcel) the grantees were unable to use any other way for a driveway, but it was possible that they or their heirs and assigns might purchase adjacent land and construct a driveway thereover to the boulevard, in the event that they should so construct such driveway the grantees, their heirs or as, signs, shall release to the grantor, her heirs or assigns, any rights of way under this grant to and from the boulevard, but in any event shall have as appurtenant to said grantee's land (said first parcel) a right of way therefrom to the shore. The engineers agree that the recorded plan of Cedar Avenue was not intended as a location thereof from actual survey, and the original Hayward field notes show that no survey was made for that purpose. The plan was accurately drawn however in relation to monuments on the ground and the lines of Cedar Avenue of that plan have been reproduced on the filed plan. The recorded plan was not referred to in the deeds of either parcel one or parcel two, and there is nothing to indicate that the grantees of parcel one knew of it until the grant of 1920. The travelled

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way was, however, on the ground at the time of both deeds, and was, I find, the way therein described as Cedar Avenue.

"But when the Donkin sisters, grantees of parcel one, conveyed to the petitioner by deed dated September 7, 1920, and recorded with said grant of the easement of August 25 and accompanying plan, they described the land as shown on said plan and therein referred to, and bounded 'along the line of said avenue.' The respondent contends that the petitioner's land extends northerly only to the southerly line of the avenue as shown on said recorded plan. That plan, however. . . . was not a survey of, nor a location of, said avenue except in so far as concerned the easement of a driveway out to the boulevard. In the grant of that easement the right of way of the grantees from said land to the shore, which was over the travelled way, was expressly preserved. Unquestionably the plan was incorporated by reference into the deed for all essential purposes, but the location of a new way between the boulevard and shore, impossible to use at its shore end, in place of the travelled way was not its purpose. It is unthinkable that it was the intention of the parties that the grantor should retain title to a land locked strip between the southerly line of the Cedar Avenue as indicated on the plan and the southerly line of the travelled way.

"I find that as a result of said deeds the petitioner's land is bounded northerly by the southerly line of the travelled way, and rule that, under familiar principles of law, rights of way thereover passed and remain appurtenant to each of said parcels one and two.

"The right of way granted in 1920 as appurtenant to the petitioner's first parcel was an additional right of way for the purposes of a driveway to the boulevard. The travelled way is not wide enough for such use. This easement is subject to the terms stated in said grant. The petitioner, successor in title to the grantees therein, has acquired parcel two, which is adjacent to parcel one, but has not constructed thereover any driveway to the boulevard, nor executed any release. Such a driveway could be

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constructed. The respondent contends that for that reason the grant of 1920 has, as would be the case in regard to a way by necessity, terminated. I rule that it has not."

The finding of the judge, that the travelled way on the ground when parcels one and two were conveyed was the way described as Cedar Avenue, cannot be said to be wrong. The deed of February 9, 1903, describes parcel one by metes and bounds, and refers to Cedar Avenue as one of the boundaries. There is no reference to any plan locating Cedar Avenue. Monuments govern distances, and Cedar Avenue, as located on the ground, is the monument which fixes the boundary of this lot on the north. Burnham v. Hoyt, 216 Mass. 278, 281. This is also true as to the deed of February 19, 1903, conveying the second parcel. The fact that the trial judge found that the description in the deed of February 9, 1903, was taken from the "Hayward" plan is not contrary to the general conclusion reached. Although it is plain that the plan was made without reference to the actual location of the travelled way, it cannot be assumed that the grantor intended that the way should be in an entirely different place. It is reasonable to believe that the actual travelled way was the way intended when the filed plan was made without any actual survey. In construing deeds the intent of the parties is the important consideration, and in arriving at this intent it is necessary to consider the actual condition and situation of the land, ways, and other local objects. Salisbury v. Andrews, 19 Pick. 250, 253. We need not indulge in presumptions as to the intent of the parties in the present case, for the plan locating the way was not referred to in either of the deeds conveying parcels one and two. The grantees of parcel one had no knowledge of the plan until 1920. They are not to be prejudiced so far as the extent of their grant is concerned by the way therein shown. They are entitled to have the deed construed according to the general rule that a monument will prevail over courses and distances if any conflict exists. Temple v. Benson, 213 Mass. 128, 132. It follows that the southerly line of the travelled way known as Cedar Avenue is the boundary of the land conveyed by

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the deeds of Mrs. Donkin dated February 9, 1903, and February 19, 1903. As found by the trial judge, the present petitioner is entitled to the same boundary line, despite the fact that the deed under which she took title, dated September 7, 1920, and recorded with the grant of easement of August 25 and accompanying plan, described the land as shown on the "Hayward" plan "and therein referred to," and bounded "along the line of said Avenue." The finding by the judge of the Land Court, after considering the circumstances under which the grant of easement and the deed were given,' that "It is unthinkable that it was the intention of the parties that the grantor should retain title to a land locked strip between the southerly line of the Cedar Avenue as indicated on the plan and the southerly line of the travelled way," was warranted by other facts found, and must stand. Erickson v. Ames, 264 Mass. 436, 441. Wood v. Culhane, 265 Mass. 555. As a result of the deeds of February 9, 1903, and February 19, 1903, the lands thereby conveyed were bounded northerly by the southerly line of the travelled way, and such lands were entitled to appurtenant rights of way thereover. Gaw v. Hughes, 111 Mass. 296. Cole v. Hadley, 162 Mass. 579. These rights of way were not ways of necessity, and the rights exist even if there be other ways, public or private, leading to the land. New England Structural Co. v. Everett Distilling Co. 189 Mass. 145, 152. The easements passed through the subsequent grantees to the petitioner, as unmentioned appurtenances created by the deeds of 1903. Fox v. Union Sugar Refinery, 109 Mass. 292, 298. Barnes v. Lloyd, 112 Mass. 224. Handy v. Foley, 121 Mass. 258.

The right of way granted in 1920, as appurtenant to the petitioner's first parcel, was an additional right of way for the purpose of a driveway to the boulevard, and was not lost by acquisition of parcel two, adjacent to parcel one, as the petitioner has not constructed thereover any driveway to the boulevard, nor executed any release of her rights in connection with the granted right of way, and the trial judge so ruled. The words of this grant, so far as per-

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tinent, are as follows: [Note p117] "Now, therefore, in the event the grantees and their heirs and assigns shall ever construct a driveway from the aforesaid land to the 'Boulevard' over land owned by them, in such event the grantees their heirs and assigns shall release to the grantors their heirs and assigns any rights of way granted hereunder for purposes of way from said land to said 'Boulevard . . . . ." It is plain that this grant did not create a mere way of necessity, which would come to an end when the grantee obtained adjacent land bordering on the boulevard. Words used in the deed are to be construed in their ordinary and grammatical sense, unless such construction would lead to an absurdity. Cotting v. Boston, 201 Mass. 97, 100. The language of the grant is to the effect that it is only if the grantees construct a driveway from the first parcel over other acquired adjacent land, that they are obligated to release the right of way granted. This has not been done. Accordingly the petitioner is still entitled to this right of way.

We have considered all the exceptions of the respondent and find no reversible error.

Exceptions overruled.