43 Mass. 457 | Mass. | 1841
This cause, or rather several causes growing out of the same subject of controversy, have long been before the court ; and it is to be regretted that all points of dispute, in regard to the relative rights of the parties, have not yet been adjusted. Several questions have heretofore been decided, and the parties have acquiesced in the decisions, and adjusted their buildings in conformity with them. 20 Pick. 291.
The main question, which now remains for consideration, between these parties, is, whether the defendants had a right to erect a building over the passage way which, it is conceded, the plaintiff has a right to have, use and enjoy, on the southerly side of the defendants’ land. It appears that heretofore both of these tenements belonged to one person, and of course neither estate was then subject to any easement for the benefit of the other ; because the owner, as the exclusive proprietor, might build upon any part, or use and appropriate any and every part of the estate at his own pleasure, as his own sense of his interest and convenience might dictate. It is obvious, that so long as two tenements remain the estate of the same owner, no right of easement can be created by use, however long continued; because such use cannot be adverse. Whenever therefore such proprietor conveys away part of the estate so situated, he may create, annex, and convey with the estate granted, such rights of way over his other estate retained, or other easements therein,
There are cases, indeed, in which it is held, that long use may be given in evidence to establish the right of the grantee, in such case, to easements in and over the estate of the grantor ; but on a very different principle from that on which prescription or pre sumed grant is founded. The right claimed depends on grant; but the question often arises, from the ambiguity, brevity, or uncertainty of the descriptive words used, what was the extent of such grant ; in other words, what was the intention of the parties in making and accepting the grant. In ascertaining this intent, several rules of exposition are adopted, founded upon experience, to enable courts to determine, or to approximate to such meaning and intent. It is a rule, that the language of a conveyance shall be construed most strongly against the grantor; because it is his act, and the language that of his choice or dictation. Again ; a grant being made for a valuable consideration, it shall be presumed that the grantor intended to convey, and the grantee expected to receive, the full benefit of it, and therefore that the grantor not only conveyed the thing specifically described, but all other things, so far as it was in his power to pass them, which were necessary to the enjoyment of the thing granted. Thus the grant of a mill actually driven by water, though not described as a water-mill in the deed, carries with it a right to the stream which supplies the mill, although it comes to the mill wholly through other land of the grantor. He cannot divert it, and thus derogate from the beneficial effect of his grant. The grant of a messuage or tract of land, with no access to it but over other land of the grantor, is by implication a tacit grant-of a convenient right of way to it over such other iand. But there is another rule in ascertaining the meaning of
With this view of the law before us, we are to look at the deed by which the defendants’ estate was granted by the plaintiff’s predecessor, to ascertain the nature and extent of the plaintiff’s easements, for a disturbance of which, this action is brought. It has already been decided that in the present case the actual use and enjoyment, on the part of the plaintiff and his predecessors, over the estate of the defendants and their predecessors, have been so nearly in conformity with the provisions of the deed, that it is to be presumed that the parties intended to claim and hold their rights under it, and, therefore, that the plaintiff’s rights depend on the reservations in the deed, and not on prescription. The law will not presume a non-appearing grant, or raise a prescription, where a grant is produced, to which his use, occupation and enjoyment may be ascribed. The court were of opinion, that the plaintiff’s rights depended on the deed from Haugh to Henry Tew, in 1703. In this deed, the grantor, having described an existing gate and passage way, of about five feet wide, on the southerly side of the estate granted, leading from the street, now Washington Street, into the yard of said messuage, made the following reservation : “ Reserving out of
On a subsequent trial, the plaintiff claimed a right to the use of the passage way, open to the sky, according to the lines of the south: and west walls of the old building on the defendants’ lot. As to arching over the passage way, the judge, at the trial, instructed the jury that if this did not occasion any inconvenience by darkening it, or otherwise, in respect to the uses for which it was reserved, the plaintiff would not be entitled to any damage on this ground ; but on this point they were instructed to assess separate damages. It appears that upon that ground, on that trial, the jury assessed damages in the sum of one dollar. On the same ground, the jury on the trial now under review, as sessed damages in the sum of $ 350. It therefore now becomes necessary more carefully to investigate the right thus claimed by the plaintiff, and examine the principle on which it rests ; because, if it be true that the plaintiff has the right claimed-, to have said passage way open to the sky, the defendants are under a corresponding obligation to take down their building, so far as it is erected over the said passage way.
Upon these views of the rules and principles of law applica ble to the present case, the court are of opinion that the defendants had a perfect right to build over the said passage way ; it being one of the beneficial uses of the property which could be made, and which, as owners, they had a right to make, consistently with the full and free enjoyment of the foo way on the part of the plaintiff.
We think that this opinion is not inconsistent with the opinions heretofore given at nisi prim, and by the whole court, though perhaps the point was not stated with sufficient precision for the purposes of deciding definitely the rights of these parties, and put
But there is another class of cases, where although the act complained of may not be unlawful, or, if unlawful, not an infringement of any right of the plaintiff, no action can be maintained without alleging and proving a special and particular damage to the plaintiff; and the damages to be recovered are confined to an indemnity for the loss thus proved to have been sustained. The plaintiff sets forth the act done, and alleges that by means thereof, he sustained the damage complained of, technically called declaring with a per quod. As where the plaintiff complained that while he was proceeding along a navigable creek with his barge laden, &c. the defendant obstructed the creek, per quod the plaintiff was compelled to carry his goods around, at a great expense. In such case the action lies for the special damage immediately occasioned by the obstruction ; but it would not lie for the obstruction itself, without special damage, because although it was an infringement of a public right, and so was unlawful, yet it was not an infringement of the peculiar right of the plaintiff. Rose v. Miles, 4 M & S. 101. So for special damage occasioned by obstructing a highway. Greasly v. Codling, 2 Bing. 263. So by a proprietor of land through which a water-course runs, against a proprietor higher up, where the gravamen of the com
We have stated that the opinion now expressed will not ap pear, upon strict comparison, to be inconsistent with those formerly expressed, though in the former cases the rule prescribed may have been less precise and definite. It may, therefore, be proper to review them. On the first trial, the jury were instructed as to the passage way, that the reservation in the deed was answered, by giving the plaintiff a passage way as convenient as it was when the reservation was made ; that if the present passage way was not so wide as before, and was not open above, yet if it was as convenient, &c. ; but that the defendants had no right to narrow or cover the passage, so as to cause serious inconvenience to the owners, &c. The observation of the court, when this part of the case came before them on a motion for a new trial, was, that by the case it appeared that the passage had been narrowed and arched over, and rendered darker and less convenient. And in reference to the instruction to the jury, that so far as the plaintiff had suffered inconvenience from the alteration, he was entitled to recover damage, the court say that this was correct. 20 Pick. 295.
It is manifest, we think, that in these remarks, so far as they related to the dimensions of the passage way, the court considered that the passage way, as it was, in point of convenience, at the time it was reserved, and the width of it, for the purpose for which it was reserved, might be considered as equivalent, and that the one description was used instead of the other. For, in this same opinion the court say, that they are satisfied that
So far as the remark of the court applied to the darkening of the passage way, it did not go on the distinction between doing an act, which the defendants have no right to do, by building over the passage way, and doing that which they-had a right to do, but doing it in such a manner as to cause some slight consequential damage to the plaintiff. Besides, the damage given by tilt, jury on that ground, being merely nominal, and the instruction not being wrong in point of law, and especially as the
In saying, that the actual condition of the way, at the time of the reservation, is not the measure and definition of the plaintiff’s right, it is necessary to guard against two misconstructions of this remark. We do not mean to say, that when a way is actually located and fixed by definite and visible objects, as by buildings or fences, the grant or reservation may not refer to such way actually existing, and that the limits then would not be fixed by the act of the parties themselves. The contrary is true in such case. Salisbury v. Andrews, 19 Pick. 250. Even where an estate is granted with all .ways ‘‘ appurtenant,” and there is, strictly speaking, no way appurtenant, but there is an actually existing way over the grantor’s other land, it shall be taken, that the way actually used and existing, though miscalled “ appurtenant,” shall pass ; because it must be understood that such was the intent of the parties. Morris v. Edgington, 3 Taunt. 24. The other misconstruction, against which we would guard, is this ; when it is said, that in such a case as the present, the actually existing state of the passage way, at the time of the reservation, is not the measure or description of the right reserved, we do not mean to say, that such state of the passage way may not be evidence, and often evidence of a very forcible and determinate character, to prove what is reasonable and convenient, and what those most conversant with the matter have, by their practice, shown to be in their opinion most reasonable and convenient, under given circumstances. And this goes far to show what was in the mind of the court, when they seemed to consider the actual condition of the way, at the time of the reservation, as equivalent to the convenient passage way reserved by the deed.
This cause again came before the court m June 1838. The judge, on that trial, had instructed the jury, that as to arch ing over the passage way, if it did not occasion any inconven
The way, indeed, was definite and certain as to its direction and the purpose for which it was reserved; and the long use was good evidence of what the parties concerned understood as necessary and convenient. But when it is said, that the passage way was then uncovered, and no right to cover it was granted, especially as the plaintiff claimed a right to have it open to the sky, it may have been understood, though not so expressed, that, without such right granted, the defendants had no such
It therefore does not appear whether the damage, given for arching over the passage way, was given for a supposed violation of the plaintiff’s right in the estate, or for a supposed consequential special damage done to the plaintiff, in the exercise of the defendants’ own right in a careless or improper manner ; and there was nothing in the instruction to the jury, under which that verdict was found, to show that it was not given on the latter ground ; in which case, there was no reason to set aside the verdict. The amount of the damages was not such as to indicate that the jury might not have proceeded on the latter ground, or to call the particular attention of the court to the distinction between these grounds. We think, therefore, that the question now distinctly brought before the court has not been decided by any of the opinions heretofore given by the court. That question is, whether the defendants had a right to build over the passage way. On that question, for the reasons herein before expressed, the court are of opinion, that the defendants, as owners of the land, had a right to build over the ground on which the passage way in question was reserved ; that the plaintiff, under his reserved privilege, had no right to have it open
Having taken this more broad and extended view of the rights of these parties, and the grounds of law on which they rest, it will be the less necessary to take into consideration the particular exceptions to the charge of the judge, upon which the cause now comes before us. So far as the judge charged the jury, that the defendants had no right to arch over the passage, and use the space over it for any purpose of building, such charge was erroneous, and had a tendency to mislead the jury. We are also of opinion, that so far as the judge instructed the jury, that the defendants were bound to keep open a passage way equal in width to the distance between the old gate posts, it was not strictly correct, although a passage of such width, and one of reasonable width, might not practically differ. We are aware that a similar instruction had before been given at nisi prius, but it was before the case had been so fully considered as at present.
For the reasons already given, the court are of opinion that the instruction of the judge was incorrect, so far as he directed the jury that the defendants were liable for damages if the new passage was rendered more inconvenient, by being covered, by reason of its being made a place of resort, or by being darkened, or otherwise.
As to the darkening, we think 4he jury should have been instructed, that the defendants were not liable for damages, unless, from the length of the passage way, it was so darkened as to render it unfit for the purposes of a passage way. We may conceive of a covered passage of eight or ten feet high, of a length so considerable, that unless openings were left, there would not be light enough admitted at the ends to enable persons to use it with comfort, for the purposes of a passage way. But unless darkened to that extent, it is not a case for damage. It must render the premises to a sensible degree less valuable for the purposes of business. Parker v. Smith, 5 Car. & P. 438. Back v Stacey, 2 Car. & P. 465. Wells v. Ody, 7 Car. & P. 410. Pringle v. Wernham, 7 Car. & P. 377.
One other subject, growing out of this report, remains for consideration. In the present action, the plaintiff claimed damages for injury done to his tenement by darkening an attic window, which overlooked the roof of the defendants’ old building. From the manner in which the facts are stated in the report, and the plans exhibited, I am not sure that the court fully understand the question. As we understand it, the complaint is, that the defendants’ predecessor, by taking down the old building and erecting another somewhat higher and deeper, that is, further west, has obstructed the window in question, and diminished the air and light formerly received through it into the plaintiff’s house. Taking this to be the case, we think it was determined in the former case, and rightly determined. The court did not, on a former occasion, mean to say that where one person, owning two contiguous tenements, grants one to another person, reserving certain easements for the benefit of his own estate, and granting others in his own estate for the benefit of the estate conveyed, the parties and their successors might not acquire other easements respectively, by grant, or prescription arising subsequently. But the principle was this ; that when the enjoyment of a particular privilege may reasonably be referred to a deed, it shall be considered as derived from such deed, and then the just construction of the deed will fix the rights of the parties. In the present case, Haugh, owning two tenements contiguous to each other, granted one in fee to Tew, reserving certain easements. Such right in fee vests in the grantee all the powers of an owner, and of course a right to pull down the buildings and erect new ones ; and such right can be restrained and qualified
It must be recollected, that building backward was an expression equal to building more westwardly, or more distant from the street. But a restriction against extending in breadth, prohibited the grantee from building more northerly, or in other words, nearer the grantor’s other tenement. The case, then, is that of a grantor conveying a tenement adjoining his own ; the parties understand that the grantee, as owner, will have a right to alter the buildings, or erect new ones, and they provide, by an express stipulation, that in such event the grantee shall not erect any building nearer than a certain prescribed line to the tenement of the grantor. But no limit is prescribed as to the height of the building. The construction we formerly put on this agreement was, that as expressio unius exclusio est alterius, the limitation upon the right of the grantee as to nearness, without any stipulation as to the height of such building, raised a fair implication that no such restriction was intended. And we still consider that this construction of this agreement of the parties was correct. The grantor owned both tenements ; he had the full disposing power ; he might decline selling at all, and he might prescribe such conditions and limitations as he might think expedient. The more he charged the estate granted with incumbrances and servitudes, the less price he would probably obtain for it.. And so, on the other hand, the more liberal the grant, the higher the price. We are then to presume, that when hq had the entire power in his own hands, he took care to protect his own estate, and secure the quantity of air and light necessary to the enjoyment of it, by prohibiting his grantee from building so near thereto as to injure it. If, then, the defendants have not built within the limit so prescribed, or, conformably to a former judgment of the court, have removed their building, sr.
Verdict set aside, and new trial granted,.