Tompson v. Stevenson

30 N.E. 75, 155 Mass. 554, 1892 Mass. LEXIS 372

• Court: Massachusetts Supreme Judicial Court
• Decided: February 25, 1892
• Status: Published

Opinion

Allen, J.

The title of the tenant is derived under a deed from the Boston Water Power Company to Davies, dated April 1, 1869, executed by its treasurer, and bearing the approval of two directors. The only authority for a conveyance at that time was a vote of the directors on May 12, 1868, as follows: “ That the street on the southwesterly side of the Boston and Albany Railroad between Berkeley and Dartmouth Streets, and the street south of the Boston and Providence Railroad between Dartmouth and Camden Streets, be and the same hereby are discontinued, and that the fee of said streets be conveyed to the owners of the land on the southwesterly and southerly sides of said street, the company to be released from all liability of making said streets where so conveyed.” The words in Italics describe the premises now in dispute.

At the time the above vote was passed, Davies was the owner of the land on the southerly side of said street; but by deed dated April 8, 1868, and acknowledged July 27, 1868, he conveyed the same to Swallow, who remained the owner till after the deed of the premises in dispute, on April 1,1869, to Davies.

If that vote authorized a conveyance to one who was the owner of the land on the southerly side of the street, at the time when the vote was passed, though not remaining the owner at the timé of the actual conveyance, then the deed was good; otherwise not.

It would be plain enough that a conveyance was authorized to the owner of the land at the time the vote was passed but for the last clause of the vote, “ the company to be released from all liability of making said streets where so conveyed.” The demandant’s view is that this clause derives its significance in reference to the land in dispute from the fact that previously, on June 20,1867, the Boston Water Power Company had conveyed to Davies the land on the southerly side of said street bounded “northerly by a street thirty feet wide,” which is the land now in dispute. The Boston Water Power Company being then the owner of the. land thus described as a street thirty feet wide, the grantee would acquire certain rights in such land or street, but the precise extent of those rights need not be considered, and perhaps at the time was not fully understood. Howe v. Alger, 4 Allen, 206. Hennessey v. Old Colony & Newport Railroad, 101 Mass. 540, decided in 1869, but not published till 1871. Such rights were not personal to the grantee, but were incident to the grant, and would pass to a subsequent purchaser of the land. Swallow, therefore, as the demandant contends, became the one in whose favor the rights in the street would be vested at the time of the deed to Davies on April 1,1869, and would be the only one who could release those rights.

These considerations, if unexplained and uncontrolled, would certainly have much force in leading to the construction of the vote which is contended for by the demandant, namely, that the conveyance which was authorized was only to such person as should be the owner of the land on the south at the time of giving the deed. But an examination of the other facts existing at the time the vote was passed leads us to the other construction.

The deed of Davies to Swallow was dated April 8,1868, though not acknowledged till July 27. It was witnessed by G. T. W. Braman, who was then the treasurer of the Boston Water Power Company. On the same day of the date of that deed, it would seem that an agreement was prepared between the Boston Water Company, by G. T. W. Braman, treasurer, and Swallow, containing provisions which contemplated his becoming the owner of the land south of the thirty-feet street, and which also contemplated the discontinuance of that street and the use of the land by others than Swallow for building purposes; and containing an agreement on the part of Swallow, for himself and his heirs and assigns, that whenever the thirty-feet street should be discontinued he would release all rights therein as a highway, except as to a turnway and certain restrictions provided for in the agreement.

The vote of the company under which the tenant claims was passed on May 12, 1868. At that time it is true that there had been no delivery of the deed of Davies to Swallow, or of the agreement of Swallow with the Boston Water Power Company ; but, in the absence of anything to show to the contrary, it is to be inferred from the dates that both had been prepared, and at the time of passing the vote, it was apparently contemplated and expected that Swallow should become the owner of the land lying southerly of the street, but not the owner of the land of the street itself, and the agreement dated April 8, making full provision, for his release of all the right which the company cared to have released in the street as a highway had been prepared. In ease this agreement should be executed, as then contemplated, there would be no necessity for any further protection from Swallow or his assigns; and, in view of the plan and arrangement then under way, it does not seem probable that the last clause of the vote was intended to restrict the power of making the conveyance to Swallow, or to such other person as might be the owner of the land lying southerly of the street at the time when the conveyance might be made.

We are therefore of the opinion, that the deed of the Boston Water Power Company to Davies, dated April 1, 1869, was within the authority of the vote ; and if this is so, the demand-. ant concedes that he has no case.

Exceptions sustained.