118 Mass. 58 | Mass. | 1875
The plaintiff had a right to take water from the well by pipes or otherwise. There is nothing in her title deed which gives to either of the defendants the right to restrict he’ to the use of pipes; and she was entitled to make use of the fix turcs and apparatus with which the well was furnished, in ordei to supply herself with water on her own premises for all reasonable and ordinary uses. The fence complained of was so constructed as to prevent the exercise of this right. Whatever was required to be done to protect the water from impurities, or to keep the top of the well in a safe condition, the defendants might undoubtedly do, but they had no right to exclude the plaintiff .from the enjoyment of the easement. The plaintiff therefore is entitled to maintain this action against the female defendant.
But since the St. of 1871, o. 812, a husband cannot be held liable for a tort of this kind committed by his wife, unless he aided, abetted, advised or otherwise encouraged the act. See Bill v. Duncan, 110 Mass. 238. The ruling that the male defendant was in law answerable for the torts of his wife, without such actual participation, was erroneous, and the exception on thai ground must be sustained. But as to the female defendant tibexceptions will be overruled, and plaintiff is at liberty to diseca: tinue as to the husband. Judgment iccordingly.