Peck v. Denniston

121 Mass. 17, 1876 Mass. LEXIS 266

Opinion

Gray, C. J.

The general rule is well settled that a boundary on a way, public or private, includes the soil to the centre of the way, if owned by the grantor, and that the way, thus referred to and understood, is a monument which controls courses and distances, unless the deed by explicit s Lavement or necessary implication requires a different construction. Newhall v. Ireson, 8 Cush. 595. Fisher v. Smith, 9 Gray, 441. Boston v. Richardson, 13 Allen, 146. White v. Godfrey, 97 Mass 472. Motley v. Sargent, 119 Mass. 231.

There is nothing in this deed to take the case out of the general rule. The boundary running by the highway on the easterly side of the lot granted “ to the new avenue as laid out by said grantor in his plan of lots ” carries the fee to the centre of the avenue. The boundary “thence running westerly on said avenue 860 feet ” must therefore also run along the centre. The further words “ to a bound stone where another avenue intersects the avenue first above named ” merely limit the length of the northern boundary. The case is very like .that of White v. Godfrey, above cited, and is distinguished from Sibley v. Holden, 10 Pick. 249, and Smith v. Slocomb, 9 Gray, 36, by the fact that in those cases the boundary began at a monument “ on the side of the road,” and thus fixed the side of the road as the line from which the boundary should begin and along which it- should run.

The additional grant of “the unrestricted right of way in and upon said avenues above named ” does not restrict the grant of land, but gives the grantee a right of way over the whole of each avenue, without regard to the title in the soil thereof. Winslow v. King, 14 Gray, 321. Stark v. Coffin, 105 Mass. 328. Lewis v. Beattie, 105 Mass. 410.

The fact that the bound stone, afterwards set up by the parties at the junction of the first avenue with the highway, was at the side and not in the middle thereof cannot be held to restrict the effect of the grant.

The deed having been rightly construed by the court below, it is unnecessary to consider whether the exceptions were seasonably taken. • Exceptions overruled.