When this bill was filed the plaintiff was the owner of a lot of land on the southerly side of Merrimack Street in Haverhill, extending from the street southerly to the Merrimack River. While the case has been pending there have been changes in the titles, and in the parties to the suit; but we shall discuss the case as if there had been no such changes. On the plaintiff’s land was a brick building, fronting thirty-
In a deed of the easterly part of the plaintiff’s land, dated April 29, 1847, it was described as follows: “situated on the southerly side of Merrimack Street in said Haverhill and bounded northerly by said street fifteen feet and to continue the same breadth to the river; westerly by land of T. M. Martyn; southerly by Merrimack River; easterly by land formerly of Benjamin Willis, now opened as a common passage. The east and west lines of the lot run about south ten degrees east from the road.” A deed of the defendant’s land, dated August 20, 1856, describes it in two parcels, the first parcel being a lot measuring on Merrimack Street about forty-two feet, and extending southerly from said street the same width to low water mark in the Merrimack River; and the second as a parcel of unoccupied land lying on said street adjoining the westerly side of the parcel above conveyed, which unoccupied land, together with the parcel first conveyed, measures in all fifty-six feet, and extends back to the Merrimack River the same width. Previously to June 25,1859, and for six years thereafter, there was a two story wooden building on the northerly end of the lot then owned by the plaintiff’s predecessor in title, extending back about thirty feet from Merrimack Street and close up to the eastern boundary line, which line was two feet westerly of the present western line of the private way, and there was a staircase leading from the ground to the second story of said building on the easterly side thereof. The master finds that this staircase was “ in said unoccupied land or common passageway belonging to John C. Tilton ” (the defendant’s predecessor in title). The passageway was then two feet wider than the present pri
The first question is whether the deed of June 25, 1859, conveyed the fee beyond the present line of the passageway. It is the law to-day, as it was said to be the law in Crocker v. Cotting, 166 Mass. 183, 185, that “ the rule by which the mention of a way as a boundary in a conveyance of land is presumed to mean the middle of the way, if the way belongs to the grantor, is not an absolute rule of law irrespective of manifest intention, like the rule in Shelley’s case, but is merely a principle of interpretation adopted for the purpose of finding out the true meaning of the words used.” This presumption of fact has been given much greater effect in recent cases than it was in the early decisions in this Commonwealth. But it is still liable to be overcome if the language, considered in reference to the subject matter atid the situation of the parties, plainly indicates a different intention. In the present case this “ small parcel of land ” is described by boundaries, with a statement of the length of the boundary line on each of the four sides. The length of these lines on the northerly and southerly sides is given as two feet. It was a conveyance of land which had been described and used as a “ common passage ” for more than twelve years. The land was bought by the plaintiff’s predecessor because an outside stair
For reasons similar to those stated in Crocker v. Cotting, ubi supra, upon different facts, we are of opinion that this deed does not show an intention of the parties to give the grantee any greater right than an easement in the passageway. In reaching this conclusion we give weight to several different considerations, all pointing in the same direction, no one of which alone, under recent decisions, would be enough to overcome the presumption of fact that the boundary of the lot was upon the centre of the private way.
As the plaintiff is not the owner of the fee of the way, we must inquire whether his easement gave him a right to have it unobstructed by the building. This depends upon the nature of the easement conveyed. The private way was of sufficient width for the convenient passage of teams, and the master finds that for many, years it was used for the passage of teams as well as of persons on foot. When the deed was made there was a forge in the basement of the building on the plaintiff’s premises, and there was a door opening from the building on the way, under the stairs. The master finds that the “ only means of access to said stairway and to said forge was over said private way, and said two foot strip purchased by Thompson, June 25, 1859.” He also finds that “ the private way was also the only means of access which said Thompson had to his land in. the rear of his said building, unless there was some means of passing through the building of which there was no evidence.” On the erection of a new building on the plaintiff’s land, the Thompson building was moved to the rear, and was used for several years as a storehouse. Those who used the storehouse drove through the private way. We are of opinion that the private way was intended for the use of teams as well as of persons on foot. The fact that the grade descends sharply from Merrimack Street .to the southerly end of the way creates a difficulty in the use of
Moreover, in considering the meaning of the words “ private way” in this conveyance, it is helpful to remember that the right in the way was granted to the owner of land used for business purposes, abutting upon the way. In such a place as this is, buildings might be expected to be erected along the line of the way, such that goods or other property might conveniently be loaded or unloaded through doors or windows at a considerable height above the ground. Perhaps access to the walls or roof of the building from the way, for making repairs, might have been contemplated. The plaintiff is entitled to a right which is convenient for use in connection with such property as his was, and as it reasonably might be expected to become, in the course of development and change produced by the growth of business in the vicinity.
We are of opinion that the erection of the defendant’s building over the private way was an invasion of the plaintiff’s rights, for which he is entitled to relief in equity. Some of the cases which bear upon the questions discussed are Atkins v. Bordman, 2 Met. 457; Brooks v. Reynolds, 106 Mass. 31; Salisbury v. Andrews, 128 Mass. 336; and Burnham v. Nevins, 144 Mass. 88.
The building was erected secretly in the night time, after the defendant had received express notice of the plaintiff’s claim of right. There is no good reason why the maintenance of it should not be enjoined in accordance with the prayer of the plaintiff’s bill.
Decree for the plaintiff.
The second prayer was for a writ “ Enjoining the defendant from maintaining any building or other obstruction on or over any part of the land included in said private way and requiring him to remove forthwith the portion of the building which he has placed over the land included in said private way as aforesaid.”