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Dubinsky v. Cama

Supreme Court of Massachusetts

January 20, 1927, Argued ; October 14, 1927, Decided

No Number in Original


 [*51]   [**322]  This is a suit in equity whereby the plaintiff seeks to have the defendants enjoined from passing over his premises and for other relief. The dispute between the parties is whether the defendants have rights of way over a strip of land five feet in width on the extreme westerly side, and over a strip of land three feet in width on the extreme easterly side, of the lot owned [***8]  by the plaintiff. The case was sent to a master and, no exceptions having been taken, by consent his report was confirmed. The relevant facts thus disclosed are that a considerable tract of land in Everett known as County Park was registered as to title. Later a separate plan of a part of this larger tract called Section D was filed and a decree entered by the Land Court imposing restrictions thereon. Finally, on March 13, 1901, a decree was entered by the Land Court subdividing the land in Section D into smaller lots, retaining the restrictions and creating rights of way in passageways, all as shown on a plan filed March 30, 1901, entitled, "Re-Sub-division of 'Lots 91-92-94-95' Section 'D' Everett." The decree of the Land Court extended on this plan authorized the issuance of certificates of title for the lots to those entitled thereto, "subject to and with the benefit of restrictions and rights of way referred to or appearing hereon." This plan, hereafter called the plan, with decree of the Land Court thereon was filed with the proper land registration office. No contention is made as to the validity of this plan and its accompanying decree. Referring to this plan, the plaintiff [***9]  is the  [*52]  owner of lot numbered 92A, situated on the northerly side of Union Street as it is called in the master's report but shown on the plan as Webster Avenue; and the defendants own lots 91B, 92B and 95A, which lie northerly of lot 92A owned by the plaintiff. The certificate of title issued to the plaintiff in December, 1921, was "to lot No. 92A . . . subject to the restrictions written on plan . . . and to the right of way referred to and appearing on said plan . . . ." The certificate of title, issued to the defendants in November, 1924, for their three lots, refers to the plan, contains a description by distances of the three lots as one parcel and by bounding on other numbered lots, makes the three lots subject to the restrictions shown on another plan, but contains no mention of the rights of way shown on the plan. There is shown on the plan a "3 ft. Passageway," being the easterly three feet of the plaintiff's lot; the easterly boundary line of his lot is coincident with the easterly line of this passageway which extends from Webster Avenue northerly to lot 92B owned by the defendants. On the plan is also shown a "5 ft. Passageway," being the westerly five feet of [***10]  the plaintiff's lot; the westerly boundary line of his lot is coincident with the westerly line of this passageway which extends northerly from Webster Avenue to lot 92B owned by the defendants. Adjacent to the passageway last mentioned, throughout its entire length, there appears on the plan a similar "5 ft. Passageway" on the easterly part of lot 91A belonging to a third person. The master further finds: "The two passageways, as they actually appear, show a ten-foot driveway to a point distant about seventy-one (71) feet from Union Street [Webster Avenue on the plan]. Beginning at that point on the westerly boundary of the five-foot passageway on the plaintiff's land, and running northerly on said passageway on the land of the plaintiff and on the boundary line of lots 91B and 92B to the boundary line of lot 95A, a wooden fence was erected by previous owners long prior to the acquisition by the parties hereto of their respective estates. At a point seventy-one (71) feet distant from Union Street [Webster Avenue on the plan] and at the beginning of the fence above referred to, there is a fence on the plaintiff's premises running  [*53]  in an easterly direction on the land [***11]  of the plaintiff and through the three-foot passageway to lot 94, thus closing access to lot 92B. This three-foot passageway is also obstructed by a bulkhead which is a part of the building on lot 92A which was probably erected about twenty-four years ago. The actual appearance of the land and buildings, viewed from either Malden or Union Streets, would indicate that the previous owners fenced in their particular lots without regard to any passageway rights. . . . I find, upon all the evidence and upon view of the premises, that from the appearance of the lay-out of the land and buildings the owners did not know of, or disregarded, the existence of the passageways and each fenced in his own property."

 [**323]  As matter of construction and interpretation of the plan and the decree of the Land Court thereon, made a matter of public record, we think that the plaintiff's lot was made subject to the two rights of passage already described. His certificate of title in terms made the lot subject "to the right of way" shown on the plan. The plan was thus incorporated in the certificate of title as much as if attached thereto. ] The principle of construction governing the interpretation [***12]  of deeds is that where mention is made of an easement as an encumbrance or as an appurtenance of the land conveyed and reference is made in the deed to a plan, the plan must be considered as a part of the deed, so far as is necessary to aid in description and identification of the easement. That principle respecting the construction of deeds of conveyance in common form is stated with ample citation of authorities in Lagorio v. Lewenberg, 226 Mass. 464, 466, 115 N.E. 979, and in Downey v. H. P. Hood & Sons, 203 Mass. 4, 10, 89 N.E. 24. It governs in the case at bar.

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261 Mass. 47 *; 158 N.E. 321 **; 1927 Mass. LEXIS 1483 ***

Simon Dubinsky v. Guisseppe Cama & another

Prior History:  [***1]  Middlesex.

Bill in equity, filed in the Superior Court on September 21, 1925, to enjoin the defendants from passing over land of the plaintiff.

The answer of the defendant, among other allegations, set up a claim of right to pass over the plaintiff's land by reason of rights of way described in the opinion.

The suit was referred to a master. Annexed to the master's report was a copy of the plan referred to in the opinion, entitled, "Re-sub-division of 'Lots 91-92-94-95' Section 'D' Everett," and "filed in the Middlesex So. Registry District, on March 30, 1901, with Certificate No. 253 in Registration Book No. 3, Page 161." On the face of the plan was the statement: "Lots on this plan are subject to the 'Restrictions' shown on copy of plan of said Sec. 'D,' filed with Certificate of Title No. 68." On the plan also was the following:

Commonwealth of Massachusetts.

Court of Land Registration

This plan is a compilation of lots appearing on plan filed with certificate of title No. 68 at Middlesex South District Registry of Deeds and sub-divisions subsequently made of lots thereon, which are here arranged together for greater convenience, and the Assistant Recorder at said [***2]  Registry is authorized to issue a certificate or certificates of title for said lots to those legally entitled thereto according to his Registration Book, subject to and with the benefit of restrictions and rights of way referred toor appearing hereon, together with any other registered encumbrances, upon the surrender or partial cancellation as to lots sold of present outstanding certificates.

Dated this thirteenth day of March, A.D. 1901.

By order of the Court


Clarence C. Smith


Material features of the plan were as follows:


Beside the facts stated in the opinion, the master found: the defendants, previous to acquiring lots 91B, 92B and 95A on November 4, 1924, and at the date of the hearing before the master, owned a parcel of land numbered 73 Francis Street, in Everett, which abutted the westerly boundary of lots numbered 91B and 95A.

The real situation as to the title was discovered when the defendants caused a survey to be made shortly before the bringing of the suit, and tore down the fence described in the opinion.

Other material facts are stated in the opinion. The suit was heard by Morton, J., by whose [***3]  order there were entered an interlocutory decree confirming the master's report and a final decree dismissing the bill and decreeing that the defendants "have a right of way over the respective passageways shown on the plan referred to and incorporated in the master's report, leading to lots 91B and 92B on said plan." The plaintiff appealed.


passageway, easements, decree, right of way, certificate of title, appurtenant, feet, registered, appearing, northerly, easterly, westerly, Street, deeds, restrictions, width, registration, fence

Real Property Law, Deeds, Construction & Interpretation, General Overview, Encumbrances, Limited Use Rights, Easements, Easement Creation, Express Easements, Priorities & Recording, Title Registration, Termination of Easements