Boston Water Power Co. v. City of Boston

Ames, J.

The question presented in this case is whether Brown and others have any such interest in the land taken as to entitle them to a share in the damages to be recovered. These petitioners derive their title to lots 1 and 2 from persons who purchased them of the Boston Water Power Company, on June 8,1868, at a sale by auction. The plan made use of at that sale is referred to in the deeds to the purchasers, and is described as recorded with the Suffolk Deeds. It must be considered as making a part of the contract in each case, so far as is necessary to aid in the identification of the lots, and the description of the rights intended to be conveyed. All the particulars appearing on the plan and applicable to these lots are to be regarded as if they had been fully set forth in the deeds. Morgan v. Moore, 3 Gray, 319 . Murdock v. Chapman, 9 Gray, 156 . Farnsworth v. Taylor, 9 Gray, 162 . As against the grantors, the purchasers therefore acquired a right of way over Huntington Avenue and St. James Avenue, not merely where those avenues adjoined the lots sold, but also by necessary implication to every such outlet or terminus as would make the way available for its intended purpose. Fox v. Union Sugar Refinery, 109 Mass. 292 .

*377 The lots 1 and 2 are described in the deeds of conveyance by metes and bounds, the two avenues above named being referred to as monuments. According to the plan, one of the avenues was one hundred feet, and the other was fifty feet, in width. They had both been filled up to the established grade and constructed as streets, as far west as Dartmouth Street, so that there could have been no uncertainty in the minds of bidders as to their limits. As the two avenues crossed each other at an acute angle, there was a triangular space between them near their intersection, which does not appear on the plan to be enclosed in black lines as if intended to be kept separate from those avenues. This triangular piece of ground may not have been well adapted from its size and shape to be used as a building lot, but it was not contiguous to, or in the immediate vicinity of, the lots granted. The mode in which it is exhibited on the plan, although it may have possibly been an indication of an intent to leave it open, or not covered with buildings, was far from being an unequivocal dedication of it as a way for the use of the purchasers, or a surrender of control over it. It has been decided that the mere reference to a plan in the descriptive part of a deed does not carry with it by necessary implication an agreement or stipulation that the condition of land in the vicinity of, but not immediately adjacent to, that granted as shown on the plan, or the use to which it is represented on the plan to be appropriated, shall forever continue to be the same. Light v. Goddard, 11 Allen, 5 . The purpose of these deeds was to convey the land with the right of way through the two avenues; but it is not clear on the face of the deeds that the grantors did intend to convey any right of way over this triangular piece. Ho such construction was necessary to give full effect to the deed, or to furnish to the purchaser an outlet in both directions. In Hew York, it has been held that such a deed and plan would not extend the right beyond the next cross street on each side of the lot sold. In re 29th Street, 1 Hill, (N. Y.) 189. In the English courts it is held that the mere exhibition of a plan at a sale is not a warranty, except so far as it is comprehended in the agreement, or necessary for its construction. Heriot's Hospital v. Gibson, 2 Dow, 301. Breynton v. London & Northwestern Railway, 2 Coop. *378 temp. Cottenham, 108. North British Railway v. Tod, 12 Cl. & Fin. 722.

Our conclusion therefore is that the new petitioners have no such estate or interest in the land in question as to entitle them to intervene under the Gen. Sts. a. 43, § 53, in this proceeding; and that judgment must be entered for the Boston Water Power Company for the sum of $200 and interest, without costs, accord ing to the terms of the case stated. Whether, upon a claim for nominal damages only, a party can be said to have an interest which would enable him under the statute to intervene in such a proceeding, is a question which we have not thought it necessary on this occasion to consider. Judgment accordingly