BURKE WAREHOUSE, INC. vs. ELEANOR THANOS, trustee, & others.

BURKE WAREHOUSE, INC. vs. ELEANOR THANOS, trustee, & others.

358 Mass. 823

March 2, 1971

This is an appeal by the defendant Thanos from a final decree of the Land Court that the plaintiff (Burke) has a right to use railroad sidetracks

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on the land of Thanos. A common grantor sold a parcel of land to Burke in July, 1965, and an adjoining parcel to Thanos in November, 1965. The judge's report includes the following findings. The common grantor knew that the right to use the sidetracks was a major inducement to Burke's purchase, knew that such use was necessary for the enjoyment of the parcel purchased by it, and intended that it have the use of the sidetracks. The sidetracks had been used by the grantor and were used by Burke. Thanos had notice of Burke's rights. Those findings were supported by the evidence. Moreover, the deed to Burke, read in the light of the purchase and sale agreement and the circumstances, granted to Burke the right to use the sidetracks. Recorded with the deed to Thanos was a covenant signed by Thanos not to sue the grantor on account of encumbrances created by the deed to Burke. Any conflicting rights of the railroad under the deed to Burke were conveyed to Burke in 1969. Burke had a valid claim to either an implied easement or an easement by express grant. See Cummings v. Franco, 335 Mass. 639 , 642-643; Perodeau v. O'Connor, 336 Mass. 472 , 474-475. There was no error.

Decree affirmed with costs of appeal.