165 Mass. 23 | Mass. | 1895
The way is described more than once in the report of the commissioners as “ a passageway six feet wide along the back of the house,” but there is nothing in the report to indicate the kind of travel which it is to be used for. If there had been at the trial any evidence tending to show that there had been in existence at that place, before the partition, a similar way which had been used for foot and carriage travel, it might have been a question of fact for the jury whether the commissioners %did not intend that the way which they established should be used in the same manner. So also it might have been a question of fact for the jury whether the way was designed for foot and carriage travel, if there had been evidence tending to show that after the report of the commissioners the parties actually had used it in that manner.
But evidence tending to show the driving of teams generally on the land for some distance in the rear of the house would have no tendency to show that there was a way for foot and carriage travel in this particular place ; Starkie v. Richmond, 155 Mass. 188, 196; nor, we think, to show that the commissioners intended this way for foot and carriage travel. The defendant testified “ that there was no other way for teams to enter upon his premises except by said way.” But it was in evidence, and appears clearly from the plan annexed to the exceptions, that there was a way on the northerly side of his premises running from the same street from which he claimed the right to enter with teams, over the plaintiff’s premises, and his testimony must be taken, we think, subject to the qualification thus imposed upon it. It also appeared that the width of teams varies from five and a half to seven feet. It would seem, therefore, if the way had been intended for carriage travel, that it would have been made wider. From the report of the commissioners and the plan it appears that the passageway goes by the back door of the house and two feet beyond the cellar door, in both of which under the indenture of 1802 the parties have common rights, and for convenient access to and from which by the tenants of the portions of the house belonging to the plaintiff and the defendant respectively it would seem to have been the object of the commissioners
Upon the whole case, we think that the ruling of the court was right. The exception as to damages has not been argued, and we have not considered it. Exceptions overruled.