Franklin Insurance v. Cousens

The owner of a parcel of land bounded on each side by a street built a hotel on the southerly portion of it having a front on C. Street, and laid out over his remaining land, the whole of which was known as 0. Square, a way thirty feet wide, from C. Street to the street in the rear of the hotel. He then mortgaged to A. the land on which the hotel stood, describing it by metes and bounds winch excluded the way. The land was conveyed with all the appurtenances » thereto belonging; and the boundary line was described as beginning at the corner of C. Street and C. Square, and its northerly line as on C. Square. After A/s deed was duly recorded, the original owner mortgaged his remaining land to B., describing it by metes and bounds which included the way. Both mortgages were duly foreclosed. Held, that A. had, as against B., a right of way appurtenant to his land over the way thirty feet wide.

Tort for obstructing the plaintiff’s right of way over Cedar Square, so called, in Cambridge. Writ dated January 24, 1878. The case was submitted to the Superior Court on agreed facts in substance as follows: On February 19, 1873, Samuel G. Reed, who owned a large tract of land in Cambridge, bounded by Cedar Street, Belmont Street and McLean Place, as shown on the plan printed in the margin,* by deed duly recorded on the same day, mortgaged to the plaintiff a parcel of this tract, with the buildings thereon, bounding and describing it as follows: “ Beginning at the corner of Cedar Square and Cedar Street, and thence running "by said Cedar Street ninety-one feet and six inches to McLean Place, so called, then by said McLean Place one hundred and twenty five feet, then on a line parallel with said Cedar Street and with the front line of the lot of land hereby conveyed ninety-one feet and six inches, then by said Cedar Square one hundred and twenty-five feet to the point of beginning; containing eleven thousand four hundred and thirty-seven square feet of land more or less, or however otherwise the said premises may be bounded, measured or described, being the same, lately known as Hotel Flanders.” The habendum contained the usual clause “with all the appurtenances thereto belonging.” The lot conveyed is that marked A B C D on the plan. Before the date of the mortgage, Reed had laid out and graded over his land, on the northerly front of the mortgaged premises, a way about thirty feet wide, running from Cedar Street to McLean Place. This way is marked A E F K on the plan. The entire parcel of land north of the mortgaged premises, and bounded by McLean Place, Belmont Street and Cedar Street, was known as Cedar Square. Curved curbstones had been set by the city of Cambridge at the corners of the way and the sidewalks on Cedar Street outside of the premises conveyed; and the way had been, and was at the time the mortgage was given, used by Reed as a private foot and carriage way and means of access to his hotel, and, after possession taken by the plaintiff, and until the acts of the defendant herein mentioned, was so used by the plaintiff. The hotel, at the time of the mortgage, was and has ever since been a large building, facing Cedar Street and Cedar Square, having hotel entrances on a piazza along Cedar Square, and covered steps leading from the piazza down into Cedar Square, which piazza was in the fall of 1876 divided by Reed into two parts by a partition, as shown in the plan; and there was siso an entrance to the piazza along and over the platform on Cedar Street, and by a step leading to the piazza from the platform. On August 17, 1876, Reed by deed duly recorded on August 29, 1876, mortgaged to the defendant a lot of land bounded and described as follows: “ Beginning at the’ southwest corner of Cedar and Belmont Streets, and running westerly by said Belmont Street one hundred fifty-three and feet to McLean Place, thence turning and running southerly by said McLean Place seventy-five feet andthence turning and running easterly by other land of said Reed one hundred fifty-three and ^2o' feet to Cedar Street, thence turning and running northerly by said Cedar Street seventy-five and feet to the point of beginning, and containing eleven thousand five hundred and seventy-six square feet of land more or less.” The land conveyed is marked E A L Gr on the plan. On July 6, 1877, the plaintiff duly entered to foreclose its mortgage, recorded the certificate of entry, and since the entry has been in possession of the premises described in the mortgage. On June 13, 1877, the defendant entered to foreclose the mortgage to him, and duly recorded the certificate of entry. He also duly sold the mortgaged premises, under a power in his mortgage, on July 11, 1877, and bought them himself, being authorized to do so under the power. The defendant has had possession of the premises mortgaged to him since his entry, but the plaintiff has always asserted its right as before set forth. After the entry and sale by the defendant, and before the date of the writ in this action, the defendant put up, and has since maintained, as shown by the dotted lines on- the plan, a fence upon and across the way at each end thereof, and over and upon the platform on the Cedar Square front of the hotel and the steps leading therefrom to Cedar Square. If, upon the above facts, the plaintiff was entitled to maintain the action, judgment was to be entered for it for nominal damages ; otherwise, judgment for the defendant. The Superior Court ordered judgment for the plaintiff in the sum of $1, and the defendant appealed to this court.