141 Mass. 252 | Mass. | 1886
This bill in equity, filed July 29,1885, is brought to restrain the defendant from raising a wall between the houses of the plaintiff and the defendant, and increasing the burden on it, and from cutting away on the front wall of the plaintiff’s house, which covers the wall between said houses, for the purpose of tying the proposed new front wall of the defendant into the side wall. The plaintiff’s title is anterior to that of the defendant, and both claim under a common grantor, Josiah Brown, who, on March 5, 1842, conveyed to one Higgins, the plaintiff’s grantor. The conveyance was by a warranty deed, which contained an agreement that the grantee should pay a certain mortgage to one Chadwick. It did not reserve, in favor of the land now owned by the defendant, any rights over the plaintiff’s land. The plaintiff’s grantor then built a house and the wall in controversy. It is found that this wall was built entirely on his own land by
Soon after the building of the plaintiff’s house, that of the defendant was built, and the beams of the house were let into this wall, as well as the granite cap of the common passage over which the defendant’s house extended,
To the extent to which this use has been practised, the defendant may properly continue it as it has existed for thirty years. But she cannot enlarge or add to the rights acquired by adverse occupation except by some other title.
The defendant seeks to establish her right to a larger use than this, and to burden the wall by the supports required for a more weighty structure, which will, to an appreciable extent, weaken the wall by cutting therein for the purpose, and inserting and tying thereto additional timbers.
Before making the conveyances under which the plaintiff and the defendant respectively claim, their common grantor, Brown, who had purchased a large parcel of land from one Chadwick, had mortgaged both lots by separate deeds to him. The mortgage of lot 3, which is the lot held by the defendant, contained the following language: “Also the right to erect, maintain, and use for building purposes, a wall not more than one foot in thickness on the southeasterly side of lot No. 4 on said plan, and next to the land hereby conveyed, such wall to be built and maintained at the equal cost and expense of the owners of lots 3 and 4 on said plan.”
The evidence does not, however, show that any claim was made by the defendant’s grantor to the more extensive rights contemplated by the mortgage deed, or that such claim was ever made known to the plaintiff’s grantor. Such claim cannot be inferred from the use of the wall as made, although that use might be sufficient to establish a right to the extent to which it actually existed. At the time the defendant’s grantor thus commenced to use the wall, the mortgage on her land, by which the common grantor had established for the mortgagee a right in favor of lot 3 over lot 4, had been paid and discharged. The fact of the former existence of such a mortgage could not tend to show that the acts done were to be treated as an assertion of a right beyond the acts themselves, and to the more extensive privileges or
cited Cubitt v. Porter, 8 B. & C. 257; Phillips v. Bordman, 4 Allen, 147; Campbell v. Mesier, 4 Johns. Ch. 334; Schile v. Brokhahus, 80 N. Y. 614.
We are therefore of opinion that the defendant should be restrained from doing any acts which will further weaken or burden the wall erected by the plaintiff.
In any aspect of the case, the defendant should be restrained from interfering with the front wall of the plaintiff’s- house, which, as now constructed, covers the side wall in controversy to the depth of one course of brick, as the plaintiff has thus maintained it for thirty years; but the view we have taken disposes of the claim of the defendant to interfere with this front wall, also upon the grounds we have heretofore stated.
Decree accordingly.
This deed also described the boundary on Endicott Street as “ nineteen feet eight inches, including the passageway three feet 'wide running southwesterly from said street.” It also stated that the conveyance was upon the condition that the passageway shall be “forever kept open and unencumbered not less than three feet wide in the clear and not less than five feet high in the clear.”
This passageway appeared by the evidence to be three feet wide, and from five and a half to six and a half feet in height.
Although the plaintifi in his brief took the point that, “excepting as to the granite cap of the passageway, the defendant’s use of the wall in controversy was not apparent and was a secret use,” yet it would seem that this point was not insisted upon; for, immediately following a slight discussion of