216 Mass. 248 | Mass. | 1913
The testatrix by her will devised the estate in question in these words: “I give to my son John E. McKenney the corner half of the double house on the corner of Blossom and Crosby Sts. in said Lynn with the land under and appurtenant thereto: the other half of said double house I give to my son Charles McKenney with a right of way to said Charles his heirs and assigns forever from Crosby St. over the land given to my son John herein for all purposes as if the same were a public highway. The line of the center of the partition wall in said double house extended to the westerly line of my estate shall be the division line between the estates herein given to my said sons John and Charles.” The wall runs through the centre from the cellar to the roof; and, no change having occurred in ownership, the tenants of the plaintiff’s half without objection, yet without any legal right, have used as a means of access to Crosby Street other land of the defendant abutting on the westerly side of the estate. But as the defendant objected to any further use of his outside land the plaintiff demanded in writing, that he assign and set out a way in accordance with the terms of the will. He declined to act, and this bill is brought to compel him to make the assignment, and for general relief.
By the plan, the estates are shown to be so situated, that if a way is laid out along the westerly line of the servient estate a partial demolition of the defendant’s house will be necessary, but,
The defendant could have set out a way, and, upon his refusal, the plaintiff could pass over the servient estate in such manner as to cause the least inconvenience to the owner, consistent with the enjoyment of the easement intended by the testatrix. Pratt v. Sanger, 4 Gray, 84, 87, 88. O’Brien v. Goodrich, 177 Mass. 32. Cotting v. Murray, 209 Mass. 133, 139. But where the right is clear, a court of equity, if the parties cannot agree, will determine what is reasonable under the conditions disclosed, and locate the way accordingly. Old Colony Street Railway v. Phillips, 207 Mass. 174, 181.
It is manifest, as we have seen, that, if it is to come into existence, the way must pass either in the rear, or in front of the defendant’s house. If in the rear, the plaintiff suggests it would
A decr.ee directing the defendant within a time to be named therein to set out and assign the way within these limits is to be entered, and if he fails to comply a master is to be appointed to lay out the way, and the decree confirming his report can also enjoin the defendant from interfering in any manner with its lawful use.
Ordered accordingly, with costs.