176 Mass. 514 | Mass. | 1900
In the year 1815 the plaintiffs’ predecessor in title, owning the tract of land through which a railroad was about to be built, conveyed to the company which was to build the railroad the strip of his land subsequently described in the location of April 16, 1816. The grantor owned other lands on each side of the strip, and his deed stipulated that the company should make a suitable road crossing. More than one crossing was used during the first nine or ten years. In 1854, by two deeds, parts of one transaction, the landowner released to the company all the rights to pass over the railroad, and the company in turn convejmd to the landowner, his heirs and assigns, the right of way now in question. The railroad was built with a single track in 1845, and a second track was added in 1848. From 1854 the crossing then granted and established remained in use, and was not obstructed by the owners of the railroad until after January 25,1875, although a new location of the railroad was filed in 1859. On January 25, 1895, the crossing having been obstructed by the defendants, the plaintiffs filed a bill to restrain them from further interference with the plaintiffs’ use of the way. This is the case reported in Hamlin v. New York, New Haven, & Hartford Railroad, 166 Mass. 462, in which a final decree in favor of the plaintiffs was entered on October 6,1896. The defendants then established on the lines between their lands and that of the plaintiffs, fences across each end of the way, with gates fourteen feet wide in each fence. Thereupon the plaintiffs brought a petition for contempt, resulting in a decree from which the defendants appealed. Pending this appeal they substituted for the fourteen foot gates other gates
By the decision reported in Hamlin v. New York, New Haven, & Hartford Railroad, 170 Mass. 548, this court ordered the report to be discharged, upon the ground that the decree in the original cause expressly left open the right of the defendants to maintain gates, and that if the plaintiffs desired to contest their right to do so it should be done in proceedings where that right would be directly in issue. The rescript to this effect was sent down on March 80, 1898, and the present bill was filed on April 11,1898. It alleges the right of way, setting out by copy the conveyance of it by the deed of October 16, 1854, and alleging that the New York, New Haven, and Hartford Railroad Company has obstructed the way by the erection of large, heavy gates across it, and for the entire width thereof, on both sides of the tracks. To this bill each defendant filed a plea, as well as an answer. A ruling was made that the pleas were not sustained; and a bill of the defendants’ exceptions to the ruling was filed and allowed, and is now before this court. In June, 1899, the case was heard upon the merits, and by consent of the parties was reported without decision to this court, such decree to be entered as the facts may require.
1. The rulings excepted to were right. The pleas set up the original bill and the proceedings thereon as a bar to the
2. It is also plain that the way granted by the deed of October 16, 1854, is in a large part cut off and made impossible of use by the plaintiffs by the present gates and fences across the ends of the way, even when the gates are opened as widely as possible. The way granted was not merely thirty-eight and one half feet in width. The deed gives,-in addition to a way of that width, to the grantee, his heirs and assigns, the right to “ pass on to his and their own land at any angle whatever with said railroad bed that he and they may see fit, whether within said thirty-eight and one half feet or not, but not more than ten feet outside of said thirty-eight and one half feet.” As the crossing is now arranged, the fences put up at each end of it by the defendants, and the gates when opened by sliding the two parts of each gate to the right and left upon the division lines, completely obstruct twenty feet of each end of the way as deeded, over which the plaintiffs have the right to have foot passengers, animals, and vehicles pass on to the plaintiffs’ land after having crossed the roadbed of the railroad in a straight line. The allegation of the bill that the defendants have obstructed the plaintiffs’ way by the erection of the present gates is therefore maintained. There are on both sides of the tracks obstructions to the use of the way which are contrary to the expressly granted rights of the plaintiffs, and for which they are entitled to relief under the present bill. The landowner having granted the way of a definite width, he cannot narrow that width by building a permanent fence upon it. Salisbury v. Andrews, 19 Pick. 250, 258. Welch v. Wilcox, 101 Mass. 162. Tucker v. Howard, 122 Mass. 529, 533. Dickinson v. Whiting, 141 Mass. 414.
3. The remaining question is whether the defendants have the
The rule is well enough stated in Jones on Easements, § 407, cited by the defendants in their brief as follows: “ The rule is general that the landowner may put gates and bars across a way over his land which another is entitled to enjoy, unless of course there is something in the instrument creating the way, or in the circumstances under which it is acquired or used, which shows that the way is to be an open one.” See O’Linda v. Lothrop, 21 Pick. 292; Atkins v. Bordman, 2 Met. 457; Underwood v. Carney, 1 Cush. 285; Johnson v. Kinnicut, 2 Cush. 153 ; Short v. Devine, 146 Mass. 119.
Considering the language of the deed of October 16,1854, and the circumstances under which the way was acquired by the force of that deed, and those under which the way has been used, we are of the opinion that it is an open way across which the defendants have no right to maintain any gates, bars, or other fences.
The deed was made by the railroad company some ten years after the railroad began to be used, and six years after its use had become so great as to require the laying of a second track. The provision that the way is to be used by the grantee, his heirs and assigns, “ in common with all other persons, if any, who have the right to use the same,” justifies the inference that it was not merely a way for the use of the grantee’s farm. The width of thirty-eight and one half feet where the way crosses the bed of the railroad, and of fifty-eight and one half feet at each end, looks in the same direction, and favors the construction that such a way, as'wide as many highways, was intended to be something more than a mere farm crossing. Gates or bars fifty-eight and one half feet in length could not have been so arranged as to allow one who had crossed the bed of the railroad to pass on to the adjoining land at any and all points of the fifty-eight and one half feet, without an expense so great and disproportionate in establishing and maintaining and operating such gates, and without such practical difficulty in using them, that it is absurd to suppose that such an arrangement was intended by either party to the deed. The grantor’s land was used only for a rail
The plaintiffs are entitled to a decree declaring their rights to be in accordance with this opinion, commanding the defendants to remove all gates or other fences now maintained across the ends of the way, and permanently enjoining them, and any and
So ordered.
