Deed, Reference to plan. Easement.
Where on a large plan, upon which streets are designated and blocks of building lots are marked out, there is left in one corner of the plan a blank space more than one hundred feet wide adjoining a railroad location and beyond the end of a certain street that is marked as fifty feet wide, so that, if the designated street were extended, as it afterwards was, at the width of fifty feet, there would be a remaining space more than fifty feet wide available for house lots, the mere fact that the space is left blank on the plan without any marks dividing it into house lots does not show necessarily an intention, in a deed conveying the house lots on the line of the extension of the street opposite the open space, which was made by a grantor who also owned the open space and referred to the plan, that this land should be left open or should be added to the width of the street, and it properly can be found that the strip of land thus left blank on the plan simply was regarded as undeveloped land and that by the reference to the plan in the deed no easement in the strip was created by grant or implication for the benefit of the lots of land on the opposite side of the extension of the street fifty feet wide.
BRALEY, J.
The lands owned by the parties are part of a large tract of unimproved sea shore property formerly owned by the Nantasket Company, which laid it out into building lots with streets or ways shown by a plan duly recorded. By the plan Manomet Avenue, fifty feet in width and one of the principal ways, apparently did not extend beyond the southerly line of Lewis Street, which it intersected, leaving between this line and A Street, the boundary on the south, a parcel of undesignated land of approximately three quarters of an acre. The company very shortly after conveyed the property to trustees who deeded by their numbers certain lots, which included the lots now owned by the respondent, to one Norwell, bounding them westerly by the easterly line of Manomet Avenue extended southerly "409.90" feet; a distance sufficient to carry the avenue to A Street. The deed also contained the further provision that the grantors reserved the right to change, lay out anew or discontinue any street shown on the plan not necessary for convenient ingress and egress from the granted premises. But as the respondent's lots had no other means of access shown by the plan the grantors and their privies in estate by this description were estopped from claiming that for a width of fifty feet and for its entire length the vacant space had not been appropriated as a part of Manomet Avenue as finally completed. Cole v. Hadley, 162 Mass. 579. The respondent derives title by deed from Norwell. The lots conveyed, as we have said, were only a part of his purchase, and after designating them by the numbers appearing on the plan they are bounded westerly by Manomet Avenue as extended. It thus appears that the fee in the extension of the avenue, which they have since conveyed to the town of Hull, remained in the grantors. McKenzie v. Gleason, 184 Mass. 452, 458, 459. And it is to be inferred from the agreed facts that, since the parties bought, the avenue for its entire length has become a public way fifty feet wide. The respondent therefore is forced to contend that only the remaining portion, comprising a little more than one half of the area which the trustees afterwards conveyed to the petitioner, who asks to have her title registered free from such incumbrance, must be left open and unimproved for the benefit of her estate. It is manifest from the record that this parcel always has been eligible for building lots, and the circumstance that the plan contains no subdivision is not as matter of law decisive. Donnelly v. Butler, 216 Mass. 41, 43. The intention of the owner where there is no specific delineation is to be ascertained from all the circumstances. Attorney General v. Vineyard Grove Co. 211 Mass. 596. Lipsky v. Heller, 199 Mass. 310. Wilson v. Massachusetts Institute of Technology, 188 Mass. 565. The tier of lots abutting on the avenue as extended, with the exception of the corner lots, were inaccessible to the public ways before the extension, in so far as the plan itself conferred any right of access to purchasers. It cannot be inferred that after" is improbable that it also purposed to leave the remaining land unsold, which by the extension would be materially increased in value. It also is of much significance, that no other unmarked areas appear upon the plan. If the company intended to provide open squares or spaces for the benefit of the lot owners or the public, and thereby enhance the value of the lots, and induce purchasers to buy, the inference that it would have provided more than one open space located in the extreme northeasterly corner seems unavoidable. The further fact, that it is bounded westerly by land of the railroad company and is unnecessary as a means of access to the station, strengthens the presumption that when the plan was prepared the strip in question was regarded as undeveloped land. Peck v. Conway, 119 Mass. 546. Attorney General v. Whitney, 137 Mass. 450, 455, 456. Donahue v. Turner, 204 Mass. 274. Riverbank Improvement Co. v. Bancroft, 209 Mass. 217. The judge having been warranted in so finding, his ruling that no easement by grant or by necessary implication attached to the petitioner's land for the benefit of the respondent's lots was right.
Order for decree affirmed.