BUCELLA v. AGRIPPINO

Prescription. Easement.

Facts, found by a judge of the Land Court at the hearing of a petition for the registration of title to land, and reported by him in a decision which did not contain all the evidence, are not subject to review or revision on appeal to this court. Where, at the hearing of a petition for the registration of title to land, a respondent claims a right of way over the petitioner's land and it appears that such right had been exercised by the respondent and his predecessors in title for more than twenty years, and that at one time a predecessor in title to the petitioner sought to stop the exercise of the rights, the questions, whether the respondent's exercise of such right then had been interrupted and thereafter became permissive only, were questions of fact, and findings in a decision by the judge, without a report of the evidence, that there was no interruption of adverse exercise of the rights by the respondent and that it had not become permissive only, will not be reviewed or revised on appeal. A mere objection, not persisted in, by the owner of real estate to the exercise of a right of way over it does not, as a matter of law, necessarily interrupt the establishment of a claim to a right by prescription. The mere fact, that one of several successive owners of property, who used a passageway over adjoining property under a claim of right, purported to convey that right of way with his land at a date before there had been twenty years' adverse use under a claim of right, or that his successors in title in their deeds did likewise, did not prevent the acquiring of title by adverse possession by any one, who thereafter used the passageway under a claim of right for more than twenty years.

WAIT, J.

The findings of fact made by the Land Court are final. No claim for jury trial was made. G.L.c. 185, §§ 15, 16. Levenson v. Ciampa, 251 Mass. 379. Mitchell v. Cobb, 220 Mass. 60. They establish that the respondents Agrippino have a right in the passageway for access to the rear of their premises and for the removal therefrom of ashes and garbage; and that the respondent Einingis has a right to use the passageway for the removal of ashes and garbage from his premises.

The petitioners have not argued that the decision is wrong so far as it deals with the rights of the Agrippinos. They contend, however, that no prescriptive right is established in the respondent Einingis because within twenty years the use he relies upon has been interrupted, has become permissive, and is traced, not through a lost grant, but through a recorded deed made by one clearly without right to convey. Whether his use was permissive, or has been interrupted, were questions of fact to be determined upon evidence which has not been reported. The cases cited above establish that we cannot review the findings of fact upon an appeal such as this. The objection made by the petitioners' predecessor in title, not persisted in, does not, as matter of law, necessarily interrupt the running of the prescription. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542. Her entire conduct was to be considered, and even if her objection was once abandoned through fear, we cannot say that she did not acquiesce finally in the wrongful use. Nothing appears to show that she took any effectual steps to prevent it.

The theory of a lost grant is a legal fiction intended to meet the difficulty of contemplating the creation of a valid title in land by something other than a deed. It has been used to support a title really acquired by long continued adverse use and granted by public policy, see Leonard v. Leonard, 7 Allen, 277, 282; but it is not to be resorted to in order to defeat one. Moreover, the theory assumes the grant of the title asserted, and not the former existence of a deed which does not create or convey it. The theory is not displaced merely by proving the existence of an actual deed which is ineffectual to grant or transfer the easement. The language from Atkins v. Bordman, 2 Met. 457, 465, 476, quoted upon the petitioners' brief, is not authority for the proposition asserted by them that, where a deed is put in evidence and it appears that the grantor was without power to convey the easement purported to be granted, a prescriptive right to the easement cannot be made out from other evidence and other facts.

Einingis could tack the periods of prescriptive use by himself, by Markelis, by Donoghue, by Hyland, and by Cavanagh. Leonard v. Leonard, supra.

The rulings of the Land Court were correct. The order for the decree is

Affirmed.