132 Mass. 235 | Mass. | 1882
The rights of the plaintiff depend upon the construction to be given to the reservation in the deed of her father, Nathaniel Wright, in 1857. Wright in that year sold to William H. Burnap, whose rights have been acquired by the defendant, a parcel of land on Prescott Street by a deed containing the following: “Excepting however and reserving to myself my heirs and assigns a passageway four feet wide, in, through and over said premises from said Prescott Street to my tenement on the westerly side thereof.” The plaintiff has acquired by inheritance, and by deed from the other heirs, the parcel of land on which was the tenement referred to, and the right of way over the defendant’s land, which was reserved in the deed to Burnap.
The effect of the reservation was of a right of way only; and at the former hearing of this case it was held that, the way being of fixed width and having been definitely located by the subsequent acts of the parties interested, the plaintiff was entitled to have it kept open where it was thus located, and therefore that the defendant could not erect a wall sixteen inches in width on the northerly side of it even if a way four feet in width was left for the plaintiff’s use, as the plaintiff could not be compelled to accept a way substituted for the one to which she was entitled, even if equally convenient and useful. Gerrish v. Shattuck, 128 Mass. 571.
The contention of the plaintiff now is that the defendant cannot be permitted to extend any building over the way thus located, as it would necessarily render the passageway darker and less agreeable, and would also interfere with the plaintiff’s enjoyment of light and air at his building. It is found by the original report, that eleven feet was a reasonable height for the way in question, that it never had been used for a carriage-way, that it was not suitable for such a way, nor intended to be so used, and
Upon this state of facts, Atkins v. Bordman, 2 Met. 457, is apparently decisive of the case before us. It was there held that the owner of land over which a passageway had been reserved might lawfully cover such passageway with a building if he left a space so high, wide and light that the way continued substantially as convenient as before for the purposes for which it was reserved. Nor can a distinction be drawn between that case and the present, as the plaintiff contends, because there the way reserved was a convenient way, while here the way had been definitely located by the acts of the parties. Such location had reference only to its position upon the surface of the soil, and, even if when thus defined the way was actually open, there was no location so far as height was concerned except so far as it was reasonably necessary for the use of such a way. The plaintiff has obtained no right to light and air above the way; she has only the right of passing and repassing, with such incidental rights as are necessary to its enjoyment. The defendant has all the rights and benefit of the ownership of the soil consistent with this easement. Perley v. Chandler, 6 Mass. 454. Atkins v. Bordman, ubi supra.
The plaintiff further objects to the term “ footway ” used in the decree appealed from; but this term is used in describing the passageway only to distinguish it from a horse or carriage way, for which it had never been used and for which it was not suitable. It was not intended thereby to prevent the use on such way of vehicles such as are usually drawn or propelled by foot passengers.
In one respect the decree entered requires modification by an addition thereto. The bill avers and the answer admits the digging up by the defendant of the way (as it has been held by this court to exist) for its entire length and breadth to the depth of about ten feet, and the carrying away of earth therefrom. The defendant had no right thus to disturb the plaintiff in her enjoyment of her easement, and he should be ordered to fill up the excavation so far as it interferes with the surface of the way, or otherwise restore the way so that it shall be as, firm,
The defendant calls our attention to the first report, where it is found “ that the operations of the defendant would not be an unreasonable obstruction of the passageway or a violation of the plaintiff’s rights.” But this finding was made upon the basis of the opinion held by the learned judge, that the way to which the plaintiff was entitled was one not definitely located, which opinion was erroneous.
The decree as entered should be amended therefore by inserting, after the clause ordering the defendant “ not to place, erect or maintain any wall on any part of the land in said way in such manner as to obstruct the plaintiff in the enjoyment of a footway over the whole length and breadth thereof,” a clause providing that the defendant shall within thirty days from the final entry of the decree make the surface of said way as firm, sound and convenient as it was before the earth was removed by him therefrom. Decree accordingly.