213 Mass. 253 | Mass. | 1913
The plaintiff and the defendant own adjoining premises on the southerly side of Goose Lane, so called, a public street in the village of Shelburne Falls in the town of Shelburne. The defendant’s premises are bounded on the west by the plaintiff’s, and the plaintiff’s on the west by Main Street, one of the
On the premises belonging to the plaintiff is a dwelling house occupied by him and fronting on Main Street. Connected with the dwelling house and fronting on Goose Lane is a building which has been used by the plaintiff as a paint shop. Near the southeast corner of his premises is a barn. There is a dwelling house on the defendant’s premises occupied by him and fronting on Goose Lane. Attached to the dwelling house are a woodshed and a small outbuilding. The entire tract of land owned by both parties is practically level, and both Goose Lane and Main Street are practically on a level with the premises all the way round. It is practicable to go directly east on the plaintiff’s premises from Main Street to the barn. During the past two years the plaintiff has been using the barn as a place for keeping his automobile. The master finds that “Prior to 1904, these premises entire had for a very long term of years been owned by the same person, and rented in part and used together as one property. During all this time access to the inside yard for the delivery of wood, coal, groceries and other things necessary and convenient for the use of the property by truck teams or otherwise, had been gained by entering upon the premises near the easterly end, from off Goose Lane,” along the right of way in question, “while cer
The decree required the plaintiff to desist from using the way for an automobile, which was what he appealed from, and enjoined the defendant “from interfering with the use by the plaintiff of said way from Goose Lane, in such manner as the said way has been used by the plaintiff during his occupation of the premises as a tenant, for ordinary and necessary household purposes and in his business as a painter, and in particular, from interfering with the use of said way as a passage-way for the plaintiff’s paint carts whether loaded with ladders, goods or other implements of the painter’s trade.”
The defendant contends that by “necessary use” is meant use by necessity; — in other words that the way which is granted is a way by necessity. If that is not so then he contends that in the use of the way the plaintiff is limited to such use as was made of it at the time of the conveyance to him on April 25, 1904. We do not think that either contention can be maintained. A way by necessity is the subject of an implied not of an express grant. In the present case to construe the grant as that of a way by necessity would be to render the grant nugatory, since it is manifest
There is nothing we think in the grant contained in the plaintiff’s deed or in the exception contained in the defendant’s deed which limits the use of the way by the plaintiff to such use as he was making of it at the time of the conveyance to him. Any use reasonably necessary to the full enjoyment of his premises may be made of the way by him. And the use of it may vary from time to time with what is necessary to constitute full enjoyment of his premises. We think therefore that so much of the decree as requires the plaintiff to desist from using the way for an automobile should be reversed.
The result is that the plaintiff’s appeal is sustained and the defendant’s appeal dismissed, and the decree as modified affirmed, with costs.
So ordered.
Made in the Superior Court by Aiken, C. J. The master was Samuel D. Conant, Esquire.