Opinion
October 29, 1965.
The case was submitted on briefs.
Max L. Glazer for the defendants.
P.J. Piscitelli for the plaintiff.
Decree affirmed with costs. By deed dated March 3, 1921, granting certain premises the plaintiff was also granted a five foot right of way over the grantor's remaining premises along the boundary between the granted and retained premises. The boundary coincided in part with the foundation wall of the dwelling on the granted premises. The defendants' predecessor in title took the remaining land from the same grantor by deed dated October 15, 1923. The latter deed made no reference to the easement granted to the plaintiff. In 1962, the defendants erected chain link fence which deprives the plaintiff and her tenants of the use of the right of way. The defendants rely mainly upon an alleged purchase and sale agreement executed in 1919 between the grantor and the defendants' predecessor in title which made no reference to the easement The judge properly excluded the agreement. The evidence did not warrant, let alone require, a finding that the plaintiff at the time she took title had notice of the agreement. Dooley v. Merrill, 216 Mass. 500, 501. See McCarthy v. Lane, 301 Mass. 125, 128; Tramontozzi v. D'Amicis, 344 Mass. 514, 517; G.L.c. 183, § 4. Upon ample evidence which need not be detailed, the judge found that by deed and by prescription the plaintiff was entitled to the relief granted in the decree. The decree was likewise correct in so far as it granted to the defendants the injunctive relief sought by way of counterclaim.