138 Mass. 228 | Mass. | 1885
The deed of Joseph H. Adams and Charles W. Adams to the defendant, dated April 1, 1874, as we construe it, did not convey the Tower lot. It bounds the premises “ thence east and south about eighty-six rods on the said Amanda Smith lot and Samuel Tower lot, so called, to the highway first mentioned.” If it had been the intention to include the Tower lot in the grant, this boundary would have been on the Amanda Smith lot to the highway. A boundary on a lot ordinarily excludes the lot.
A comparison of the description of the granted premises in the other deeds recited in the exceptions only confirms the construction we have given to this deed to the defendant, and makes it certain that it conveyed only the original homestead of Joseph Adams, which he devised to Benjamin Adams, and which did not include the Tower lot. The court therefore properly refused to rule “ that the line should run according to the westerly line of the Tower lot.” The boundary was the easterly line of the Tower lot.
Oral evidence was inadmissible to show that the parties intended that “the Tower lot should pass to the defendant by this deed; ” and there is no other exception to the finding of the presiding justice that the easterly line of the Tower,lot was the true line.
It is not denied by the plaintiff, that, so far as the barn was situated on the land conveyed, it passed to the defendant by virtue of the deed. One claim of the plaintiff is, that the
The defendant asked the court to rule that the whole barn passed to the defendant as parcel of, or appurtenant to, the homestead of Joseph Adams. This was rightly refused. There is no mention of the barn in the deed to the defendant; the premises are conveyed by metes and bounds. Whatever title the defendant has in the barn has been acquired because the barn was so attached to the realty as to have become a part of it, and therefore that part of the barn which was within the boundaries of the land conveyed to him passed to him by the deed as a part of the premises conveyed. The use of the whole barn was not necessary to the enjoyment of the premises granted, and there are no words in the deed whereby the grant can be extended beyond the boundaries of the land.
The plaintiff contended that he had a right to have tho whole barn remain as it was at the time of the conveyance to the defendant, and that the defendant had no right to cut oh? the portion of it which was on his land, and thus deprive thu portion on the plaintiff’s land of the support and shelter whicl - the easterly end of the barn afforded. The defendant asked the court to rule “ that the plaintiff had no right or servitude oí support for the part of the barn which was on the plaintiff’s land.” This ruling was refused, and damages were assessed “ for the loss of support to the plaintiff, and for loss of sheltei to the plaintiff’s part of the barn.”
The plaintiff relies upon Pierce v. Dyer, 109 Mass. 374 The only point decided in that case was, that, when the owner of a dwelling-house conveys to two persons distinct parts of it, separated vertically by an imaginary plane, there is no implied obligation on one grantee to keep his part in repair for the benefit of the other part. The opinion, however, assumes as settled, “ that, where two or more houses, so constructed as to require mutual support, are conveyed to different owners, or where separate portions of one dwelling become vested in different owners, a right of support, as incident to the property, passes by the conveyance to each grantee, unless excluded by the terms of
The familiar instance of a reservation by implication of law is a way by necessity. The law upon ways by necessity has been frequently considered by this court, and it is established that such ways exist only so long as the necessity exists; that the necessity required is not an absolute necessity; that the reservation of such a way to the grantor is to be implied when necessary, as well as a grant of such a way to the grantee; and that this implied reservation of a way to the grantor over the land granted is not a breach of the covenants of warranty or against incumbrances contained in the deed. If the landowner
Richards v. Rose, ubi supra, was assumed to be settled law in Pierce v. Dyer, ubi supra, and the case is perhaps approved in England by those judges who question or deny the authority of Pyer v. Garter, on the assumption that the two houses were so constructed as to be mutually subservient and dependent on each other, neither being capable of standing or being enjoyed without the support it derived from its neighbor. Wheeldon v. Burrows, 12 Ch. D. 59. Suffield v. Brown, 4 DeG., J. & S. 185, 197. Russell v. Watts, ubi supra.
Mitchell v. Seipel, 53 Md. 251, is a well-considered case, in which the distinction between grants and reservations by implication is carefully traced, and the doctrine maintained that the grantor cannot derogate from his own absolute grant so as to claim rights over the thing granted, yet it cites with approval Richards v. Rose, ubi supra, and says, “ This furnishes another instance of an easement of necessity within the exception to the general rule forbidding implied reservations.” These implied rights of support of the grantor and grantee in the premises of each other have been called mutual or reciprocal easements, because there is a necessity for mutual support; Russell v. Watts, ubi supra; and the burden imposed on each is accompanied by a corresponding benefit to the other.
It is probable that the demise in Richards v. Rose was, in terms, of a house, and that the house was divided by a partition from the adjoining house, although they were so constructed that each required the support of the other. We are not, however, required to determine in the case at bar whether, if the deed had conveyed, in terms, a part of the barn, each then would not have had the right to insist that the whole remain as it was at the time of the conveyance, or whether the rights of the grantee are or are not in this respect greater than those of the grantor. The plaintiff as one of the grantors conveyed to the defendant, by warranty deed, the premises by metes and bounds. There is no reference to the barn, but the boundary line in fact ran through the barn. The plaintiff has reserved no rights in the part conveyed ; there is nothing in the deed that, by construction, gives
The plaintiff has no right to the light or air that comes to him from the defendant’s part. The defendant, we have no doubt, could have lawfully erected a partition through the barn upon his line. It cannot be that the plaintiff has the right to compel the defendant to permit his end of the barn, however long it may be, to remain on his land for the plaintiff’s benefit. The only right of the plaintiff, we think, is the right of support to his end-Although this right is a conventional and not a natural one, because it is an artificial structure, we think it is analogous in many respects to the right to the lateral support of land by land. This right does not prevent one landowner from removing the soil, and withdrawing the natural support, provided he furnishes the adjoining landowner with an equivalent support, as by a wall or other structure, and does no actual damage to the adjoining land. The defendant had, we think, the right to cut off his end of the barn, provided he left the plaintiff’s part as well supported as before; but so far as he has by his acts impaired the plaintiff’s right to support, he is liable in damages. The difficulty is in determining whether the plaintiff’s right of support included also the right to the shelter afforded by the covering of the defendant’s part. In Pierce v. Dyer, ubi supra, it is assumed that the right of support included that of shelter, but no decisions to that effect have been shown us. Some analogy may perhaps be derived from the reciprocal rights and obligations of the owner of an upper to the owner of a lower tenement in the same building. It has been said that the owner of the lower tenement has no right to destroy the supports of the upper tenement, and that the owner of the upper tenement has no right to destroy the
The necessity which was apparent in the case at bar was that each part should have the support and shelter of the other, for its beneficial use. Although the plaintiff could construct a support and shelter for his part upon his own land, yet all adjoining landowners can do this, and they are not compelled in this way to protect their land as a substitute for the natural support and protection of adjoining land. See Mears v. Dole, 135 Mass. 508. We think similar considerations apply when similar rights are acquired in artificial structures, and that, if the defendant removed his end of the barn, he was bound to supply an equivalent support and shelter, or pay the plaintiff the cost of constructing such a support and shelter, if it were practicable to construct them, and the cost did not exceed the damage to the plaintiff’s estate, and that the rulings of the court were substantially correct.
The measure of damages is not necessarily what it would cost the plaintiff to construct such a support and shelter, but compensation for the injury to his estate caused by reason of having been deprived by the defendant of the existing support and shelter. Gilmore v. Driscoll, 122 Mass. 199.
No exception has been taken to the rule of damages, if the loss of shelter was to be considered as an element of damage. As the right is reserved to the plaintiff by implication of law out of his grant, he is not estopped from claiming it by the covenants in his deed. Mxceptions overruled.