McMahon v. Blanchard

265 Mass. 56
CourtMassachusetts Supreme Judicial Court
DecidedNovember 26, 1928
StatusPublished
Cited by3 cases

This text of 265 Mass. 56 (McMahon v. Blanchard) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMahon v. Blanchard, 265 Mass. 56 (Mass. 1928).

Opinion

Pierce, J.

This is a bill in equity wherein the plaintiff seeks to have removed a fence, erected by the defendants about six inches from the westerly boundary of the plaintiff’s land. In their answer the defendants admit they erected the fence described in paragraph six of the bill of complaint, but say said fence was erected upon premises belonging to them. The cause was sent to a master “to hear the parties and their evidence and report his findings to the court, together with such facts and questions of law as either party may request.” No exception was taken to the master’s report and it was confirmed by an interlocutory decree. [59]*59Subsequently a final decree was entered dismissing the bill. The plaintiff appeals from the final decree only.

The appeal presents the single question, whether on the master’s findings relief should have been granted the plaintiff. American Stay Co. v. Delaney, 211 Mass. 229. Grossman v. Lewis, 226 Mass. 163. Raynes v. Sharp, 238 Mass. 20, 24. From the findings it appears that, under date of April 29, 1909, James C. Hall and Edward Hall conveyed a certain tract of land on the northerly side of Summer Street, in Pittsfield, Massachusetts, to George C. Leidhold; this property had a frontage on Summer Street of one hundred and sixty-four and seven-tenths feet and a depth of one hundred and forty-eight and five-tenths feet. By a series of conveyances George C. Leidhold conveyed portions of the land to various grantees. In this way the original tract was divided into five parcels, three having a forty-foot frontage on Summer Street and two situated in the rear.

The first conveyance was to Henrietta C. Biley, by deed dated April 8, 1910. By this deed title to the westerly lot fronting on Summer Street was passed. In it and in the mesne conveyance which ultimately vested the title to this lot in Luigi Buberto and wife no mention is made of any right of way either as an appurtenance or as a boundary. The front fine of this lot on the northerly fine of Summer Street ran easterly forty feet from the southeast corner of land of one Charles C. Wright.

On May 11,. 1910, Leidhold mortgaged the central front lot, which is hereafter referred to as land conveyed by Max Baker to Israel Boxer on May 27, 1927, to the Berkshire County Savings Bank. This mortgage contains the first mention of any right of way. Its language is as follows: “Together with a right of way for all the usual purposes and to be enjoyed in common with the grantor, his heirs and assigns in, over and upon three strips of land, the first being twenty (20) feet in width east and west and extending northerly from Summer Street to premises heretofore mortgaged by the grantor to the grantee, the easterly fine of said right of way being the westerly fine of the parcel herein conveyed; [60]*60the second strip being also twenty (20) feet in width and extending northerly from Summer Street to other land heretofore mortgaged by the grantor to the grantee the westerly line thereof being the easterly line of the premises herein conveyed and the third strip being ten (10) feet in width and connecting the two strips above named at the northerly end thereof, the southerly line of the said last mentioned strip being the northerly line of the premises hereby conveyed.”

On May 1, 1911, Leidhold conveyed this lot to Joseph Ressler; it is described in the deed as follows: “Beginning at a point in said northerly line of Summer Street which is sixty (60) feet easterly from the southeast corner of land now or formerly of one Wright; thence running northerly in a line parallel with the easterly line of land now or formerly of Wright ninety (90) feet; thence easterly in a line parallel with the northerly line of Summer Street aforesaid forty (40) feet; thence southerly in a line parallel with the first course described ninety (90) feet to said northerly line of Summer Street; thence westerly in said northerly fine of Summer Street forty (40) feet to the place of beginning. Together with a right of way to said grantee his heirs and assigns forever in common with others for all the usual purposes and at all times over two strips of land twenty (20) feet in width running northerly from said Summer Street one hundred (100) feet, the southeast corner of the easterly right of way, being forty (40) feet westerly from the southeast corner of the grantor’s premises and the southwest corner of the westerly right of way being forty (40) feet easterly from the grantor’s southwest corner and also over a strip of land ten (10) feet wide connecting the two above named strips at their northerly end, said last named strip being ten (10) feet in width north and south and its northerly fine being the northerly fine of said two above named rights of way extended easterly and westerly to meet each other.”

Under date of April 24, 1911, Leidhold conveyed the easterly rear lot, now owned by Ludger Gauvreau to Benson M. Lathrop and Maud Lathrop. All the deeds affecting this particular parcel contain the following reference to said right [61]*61of way: “Together with a right of way for all the usual purposes and at all times over two strips of land twenty (20) feet in width, running from the northerly line of said Summer Street one hundred (100) feet; the southeast corner of the easterly right of way. being forty (40) feet westerly from the southeast corner of the grantor’s premises and the southwest corner of the westerly right of way being forty (40) feet easterly from the grantor’s southwest corner and also over a strip of land ten (10) feet in width connecting the two above named strips at the northerly end, said strip being ten (10) feet in width as aforesaid, north and south, and its northerly line being the northerly line of said two above named rights of way extended easterly and westerly to meet each other.”

By deed dated June 14, 1911, Leidhold conveyed the northwesterly corner of the tract to Joseph and Celina Letourneaue, “Together with a right of way to said grantees, their heirs and assigns forever in common with others, for all the usual purposes and at all times over three (3) strips of land to and from the granted premises to Summer Street, which rights of way are fully described in my deed to Joseph H. Ressler, dated May 1, 1911, recorded in Book 361, Page 597.” This parcel was later reconveyed to Leidhold and he conveyed it on July 24,1922, to Roscoe H. Blanchard and his wife, May Blanchard, the defendants in this bill of complaint. The deed to Blanchard and his wife described a right of way in the same language as is used in the deeds of Leidhold to Ressler and to Lathrop.

Leidhold, on May 29, 1911, conveyed to Joseph and Celina Letourneaue the most easterly forty feet of the Hall property, “To have and to hold the granted premises with all the privileges and appurtenances therein belonging to said Letourneaue’s, their heirs and assigns.” By deed dated March 30, 1915, the Letourneaues conveyed this property to Eda E. F. and Freída Leidhold. They in turn ón January 12, 1916, conveyed the parcel to George C. Leidhold, “To have and to hold the granted premises with all the privileges and appurtenances thereto belonging to the said George C. Leidhold, his heirs and assigns.” Leidhold conveyed this parcel to Harriet B. McMahon, the plaintiff, by deed dated Sep[62]*62tember 4,1920. There is no mention of a right of way as an appurtenance or as a boundary in any of the deeds relating to this parcel. The master states: “I find no plans recorded or otherwise of the property.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Crawford v. Tucker
64 So. 2d 411 (Supreme Court of Alabama, 1952)
Daviau v. Betourney
88 N.E.2d 541 (Massachusetts Supreme Judicial Court, 1949)

Cite This Page — Counsel Stack

Bluebook (online)
265 Mass. 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmahon-v-blanchard-mass-1928.