158 Mass. 426 | Mass. | 1893
This is a bill in equity, brought to restrain the defendants from changing the grade of a passageway. The defendants appeal from a decree for the plaintiffs, and the case is before us on agreed facts and evidence. The questions are whether the plaintiffs have lost by abandonment a right which otherwise they are admitted to have, and whether the contemplated change would interfere with the plaintiffs’ rights. The facts which are material to our decision are not disputed. The plaintiffs’ title is derived from one who owned both the dominant and servient estates. His deed conveyed the easement in question in the following words: “ the right of use in common with the abutters thereon of a passageway on the southeast boundary as now laid out, about five feet wide, for any and all lawful purposes, with the express understanding that said passageway shall be maintained and supported at the common expense of all the abutters thereon.” The southeast boundary was described in the same deed as “ a line running longitudi
In 1866, the defendant Greene, having bought the adjoining land, lowered the passageway about three and a half feet, leaving the plaintiffs’ door in the air. Thereupon the plaintiffs built an L, covering their whole yard, and built up the wall solid, and there has been no gate there since. This is relied on as an abandonment. In the same year they opened a coal-hole ten inches by twelve through the wall of their main building on the passageway, but we assume that, if this was wrongful originally, no right to maintain it has been acquired by lapse of time.
The defendants, assuming the state of things in 1866 to have been the same as that in 1833, say that, while a right to pass through the gate may have been granted by implication, the plaintiffs’ predecessors got no right to make any other aperture through the party wall, and had no right of way over the six inches, or whatever it may have been, covered by one half of that wall and belonging to the defendants’ predecessor. This is tacitly assumed as equivalent to the proposition that the only right in the passageway was in connection with the gate, and the conclusion is drawn that when the gate was closed the easement was abandoned.
Admitting the defendants’ assumption as to the facts to be correct, we cannot construe the plaintiffs’ rights so narrowly. Whether under such circumstances they had the right to make reasonable apertures, we need not consider further than to say that cases as to party walls not bounding passageways are not conclusive. But we cannot admit that, if in any way the wall should be removed in whole or in part, it would be wrongful in the plaintiffs to pass from their land to the passageway over any part of the land where the wall had been. At all events, and even if the plaintiffs had no right to enter the passageway
The Wardens and Vestry of St. Paul’s Church, and their tenants, Shepard, Nor well, and Company, seek to better their case by the fact that the latter have built upon a plan which requires the lowering of the passageway. But if the plaintiffs were required to take any notice of acts done by strangers outside the servient land and in no way interfering with the plaintiffs, the coal-hole was notice to these defendants, as well as to the servient owner, that they built at their peril. No question of loches apart from abandonment is open, nor does it appear that there were any.
It is settled that, if the plaintiffs had a right of way, the defendants have not a right to make any change in its grade which will make the way less convenient to any appreciable extent. Killion v. Kelley, 120 Mass. 47, 52. Kelley v. Saltmarsh, 146 Mass. 585. Nute v. Boston Co-operative Building Co. 149 Mass. 465, 471. It is found that the proposed change would interfere with the plaintiffs’ rights, and we are of opinion that the defendants ought not to be allowed to make a compulsory purchase of the right to interfere with them.
Decree for plaintiffs.