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Mt. Holyoke Realty Corp. v. Holyoke Realty Corp.

Supreme Judicial Court of Massachusetts

September 22, 1932, Argued ; September 15, 1933, Decided

No Number in Original


 [*101]   [**228]  The plaintiff and the defendant Holyoke Realty Corporation, which will hereinafter be referred [***5]  to as the defendant, own adjacent business blocks on High Street in Holyoke. Title to their respective properties was acquired by the plaintiff in 1929, and by the defendant in 1931. The first floor of each building is occupied for store  [*102]  purposes and the second and third floors of the defendant's building are let to separate tenants who are joined as parties defendant. Since 1919, tenants occupying the third floor of the building now owned by the defendant have had access thereto only by means of a stairway located in the building now owned by the plaintiff and through doorways cut on the third floor in the partition wall between the two buildings. In 1926 a doorway was cut in the partition wall on the second floor and since that time tenants of the second floor of the building now owned by the defendant have had access to the premises leased to them only by the use of the stairway in the building now owned by the plaintiff.

The plaintiff seeks by its bill in equity to have the defendant and its tenants enjoined from using the stairway in the plaintiff's building. The case was heard upon an agreed statement of facts and upon oral evidence by a judge of the Superior Court [***6]  who made findings of fact and rulings of law and entered a final decree declaring that upon the severance of title by a former owner of both properties "there was created by implication, as appurtenant to the land of the defendant . . . an easement of way upon and over the stairway in the southerly side of the property of the plaintiff and the entrance therefrom through the partition wall to the third floor but not to the second floor of the property of the defendant . . . to pass and repass from and to High Street, which easement is appurtenant to the said premises of said defendant" and further declared that "this easement will continue only during the joint life of the two blocks now standing upon the two parcels . . . ." Both parties appealed from the final decree.

The common owner of the two buildings in the year 1919 removed a stairway leading from the second floor to the third floor of the southerly building, which is now owned by the defendant, and constructed doorways on the third floor in the partition wall between  [**229]  the two buildings. Thereafterwards and down to the present time the only means of access available for use and used by occupants of the third floor [***7]  of the southerly building was through  [*103]  these doorways and over a stairway in the northerly building now owned by the plaintiff leading from the third to the street floor where there was an entrance from the street. Such was the only method of passage between the street and third floor of the southerly building when one Hertzmark purchased the two parcels in 1920, and when on April 27, 1922, he gave separate first mortgages on each parcel to the Peoples Savings Bank, on the northerly parcel for $ 48,000, on the southerly for $ 52,000. Hertzmark deeded the northerly parcel to one Bourque in 1925, subject to the $ 48,000 mortgage and took back a second mortgage which he foreclosed in 1928 and again took title. Later in the same year the mortgage to the Peoples Savings Bank on that parcel was discharged, a new mortgage to another bank given, and in 1929 that parcel was deeded by Hertzmark to the plaintiff. Title to the equity of redemption in the southerly parcel remained in Hertzmark subject to the $ 52,000 mortgage until the Peoples Savings Bank foreclosed that mortgage in 1931 and gave a foreclosure deed to the defendant. The record warrants the finding that, while it is [***8]  possible to furnish a means of access to the third floor of the defendant's building by the construction therein of a stairway, the necessary cost and the resultant diminution in the value would be unreasonable and disproportionate to the value of that building.

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284 Mass. 100 *; 187 N.E. 227 **; 1933 Mass. LEXIS 1066 ***

Mt. Holyoke Realty Corporation v. Holyoke Realty Corporation & others

Prior History:  [***1]  Hampden.

Bill in equity, filed in the Superior Court on March 29, 1932, and described in the opinion.

The suit was heard by Lummus, J., upon an agreed statement of facts and other testimony, a stenographer having been appointed. Material facts and a final decree entered by order of the judge are described in the opinion. All parties appealed.

Disposition: Decree affirmed with costs. 


easement, parcel, mortgage, third floor, deed, mortgage deed, stairway, parties, conveyance, premises, circumstances, conveyed, partition wall, second floor, severance, southerly, doorways, street, decree

Real Property Law, Limited Use Rights, Easements, Continuous & Discontinuous Easements, Encumbrances, Adjoining Landowners, Easements, General Overview, Easement Creation, Express Easements, Evidence, Inferences & Presumptions, Easement by Necessity, Contracts Law, Types of Contracts, Lease Agreements, Easement by Implication, Negotiable Instruments, Enforcement, Setoffs, Estates, Present Estates, Fee Simple Estates, Deeds, Financing, Foreclosures