Salisbury v. Andrews

128 Mass. 336 | Mass. | 1880

Lord, J.

In this case there is no material fact in dispute between the parties. The controversy is solely as to their respective rights in law, upon undisputed facts.

In 1803 the whole of the land, on which are the passageway in question and the estates of the plaintiffs and defendants, was owned in equal parts by Isaiah Thomas and Ebenezer T. Andrews, as tenants in common in fee simple. Between 1803 and 1806 they had laid out this passageway, and had so wrought or constructed it as to indicate to a great extent its nature and purposes. A single building and a block of buildings had been erected fronting upon it, and sidewalks of brick, if not then actually made, were evidently in contemplation, as appears not only from the width of the court, but from the first deed of conveyance by Andrews of the estate now owned by the plaintiffs, in which the sidewalks are particularly mentioned, and provision made for their being kept in repair; and between such actual or contemplated sidewalks was a passageway left suitable for carriages and vehicles drawn by horses or other animals. After this had been done, Thomas and* Andrews, in 1806, by their deed of partition, conveyed to each other their respective moieties in certain portions of the undivided property, so that each came to own his respective share in severalty; and then, for the first time, this passageway was accurately defined and described, and that description and the use to which it was then devoted are quite decisive of the character of the way.

On referring to the partition deed of 1806, it will be observed that, in bounding the first parcel which is to be held in severalty, the phrase is used “thence running to land left and now used for passageway in Central Court; ” and the next reference is in these words: “ from the block of four houses built by said Thomas and Andrews in Central Court; ” and, again, “ distant from the single house built by them in said court.” And so through the whole partition deed, although the way is sometimes referred to simply as a way, yet when it is designated in any mode, it is called Central Court; and the deed itself provides that that way, as first located, “ shall be left and always lie open for the passageway or court aforesaid for the common use and benefit of both the said parties and their said respective estates,” and there was the further covenant between them as to the land as purchased in the name of Andrews, but in the interest of both, that so much of such land “ as lies opposite to the southwest end of said way or court shall be in like manner left and always lie open as a way for the common use and benefit of both of said parties and their said respective estates, so that said court shall be continued in a straight line across the land formerly belonging to said Soley, to Demming’s Court above mentioned, and also that each of said parties shall retain and have an equal right of way in and over said Demming’s Court for the common use and benefit of themselves and of their respective estates.”

It is thus manifest from this partition deed that the laying out of Central Court was for the purpose of bringing into use and into the market certain back or rear lands in such manner as that the same could properly and advantageously be used as dwellings or residences. A portion of the land thus divided by this deed of partition was in 1824 sold by Andrews to one Homes, who subsequently conveyed it to Salisbury, the father of the first-named plaintiff, and their rights in respect to said court were afterwards a subject of dispute before this court, in the case of Salisbury v. Andrews, 19 Pick. 250; and Chief Justice Shaw, with his usual fertility and exhaustiveness of discussion, has expounded the principles upon which instruments of this kind are to be construed, which not only throw much light upon, but, in our judgment, settle the rights of the parties to this controversy. The result of that exposition is, that not only every clause and phrase in a deed, but every word, is presumed to have been used for some purpose and to accomplish some result, and that result is the intention of the parties; and while no evidence is competent to show that the parties meant something different from what the ordinary import of their language expresses, yet where the language used is of doubtful import, and where the precise purpose and intent of the parties is not expressly defined in words, the facts and circumstances surrounding the transaction, “ such as the actual condition and situation of the land, buildings, passages, water-courses, and other local objects, in order to give a definite meaning to language used in the deed, and to show the sense, in which particular words were probably used by the parties, especially in matters of description,” are always proper to be considered.

Applying these principles, we' have no doubt that the intention of the parties to that deed of partition was to establish what in cities is technically known as a court, and that that court was to be of the higher class of courts, not confined to one single mode of access and egress, but to be so connected with other avenues as that there might be passage through it, and not simply entrance into it with return only in the same mode as entered upon. It is clearly manifested also by said conveyance that the parties to it intended, not only that the buildings erected upon it should be fit for residences, but that the class and character of such residences had been indicated by the fact that they had jointly, while owning in , common, built not only a single dwelling-house, but a brick block of four dwelling-houses; and that their purpose was to bring the remaining land into the same use, by themselves or their grantees, by attaching to their entire lands that court for the common use and benefit of themselves and their respective estates. And the language used by them has a peculiar force and significance in this respect. It says nothing of a right of way, or right to pass and repass either over and through it or to or from any particular estate, but its language is especially adapted to the constitution of an open court partaking largely, if not entirely, of the nature of a public street. The language is: “ And it is hereby further covenanted, granted and agreed by and between the said parties to these presents, that all that part of the above-mentioned land conveyed to them by said Jonathan Mason, and which is not hereinbefore assigned, set off and released to either of said parties, shall be left and always lie open for the passageway or court aforesaid, for the common use and benefit of both of said parties and their said respective estates.”

The use and benefit of such a court became, therefore, attached to every part of their respective estates, and a grant of any part of the estate, even without express words, would carry such use and benefit as appurtenant to the land, and could not be detached from the land itself except by contract. It is therefore clear that this is not simply a right of way in the plaintiffs, and attached to their estate, but their right is to the use and benefit of an open court, and that right extends as well to the. light and air above as to actual travel upon the surface of the earth; and, without the evidence of the tenant that the sun is now wholly excluded from the house in the afternoon, while formerly there were several hours of sunshine, the erection of such a structure, as that erected by the defendants is conceded to be, is of itself an infringement of the plaintiffs’ right, and a nuisance to their estate, which they have a right to have abated.

Decree for the plaintiffs.