that a convenient right of passage way was reserved for the benefit of the plaintiff's estate, but that the width of it was not fixed. And we

are still of opinion that that was the true construction. For, although the gate was described as "about five feet wide," there was no warranty of its width, and no words declaring that he should have the width of the way as it then existed, or any equivalent expression. And the word about indicates that it was not intended to be definite. It was therefore the right of a suitable and convenient passage for the purposes indicated. 20 Pick. 295.

On a subsequent trial, the plaintiff claimed a right to the use of the passage way, open to the sky, according to the lines of the south and west walls of the old building on the defendants' lot, As to arching over the passage way, the judge, at the trial, instructed the jury that if this did not occasion any inconvenience by darkening it, or otherwise, in respect to the uses for which it was reserved, the plaintiff would not be entitled to any damage on this ground; but on this point they were instructed to assess separate damages. It appears that upon that ground, on that trial, the jury assessed damages in the sum of one dollar. On the same ground, the jury on the trial now under review, assessed damages in the sum of $350. It therefore now becomes necessary more carefully to investigate the right thus claimed by the plaintiff, and examine the principle on which it rests; because, if it be true that the plaintiff has the right claimed, to have said passage way open to the sky, the defendants are under a corresponding obligation to take down their building, so far as it is erected over the said passage way.

The owner of an estate in fee, by virtue of his interest and power as proprietor, may make any and all beneficial uses of it at his own pleasure, and he may alter the mode of using it, by erecting or removing buildings over it, or digging into or under it, without restraint. Cujus est solum, ejus est usque ad cœlum. If any other person has an easement in it, the owner has still all the beneficial use, which he can have consistently with the other's enjoyment of that easement. If the easement is a right of way, this consists in a right to use the surface of the soil, for the purpose of passing and repassing, and the incidental right of properly fitting the surface for that use; but the owner of the soil has all the rights and benefits of ownership, consistent with such easement. Perley v. Chandler, 6 Mass. 454. He is entitled to the herbage growing upon it. Adams v. Emerson, 6 Pick. 57. All which the person having the easement can lawfully claim is the use of the surface, for passing and repassing, with a right to enter upon and prepare it for that use, by levelling, gravelling, ploughing or paving, according to the nature of the way granted or reserved; that is, for a foot way, a horse way, or a way for all teams and carriages. When no actually existing way, as bounded and located, is granted or reserved, the right of way, in point of width and height, shall be such as is reasonably necessary and convenient for the purposes for which it is granted. If it be a foot way only, it shall be reasonably wide and high for all per

sons to pass on foot, with such things as are usually carried by foot passengers. If it be a way for teams and carriages, it shall be of suffi cient height and breadth to admit of carriages of the largest size in common use, and high enough for loads of hay, and other similar vehicles usually moved by teams. Under such circumstances, what is a reasonable height and width, is partly a question of fact, and partly a question of law; the facts all being found by the jury, what is a reasonable width and height is a question of law; or, to express the same thing in other words, what was intended by the parties to be the nature and extent of the right granted, is an inference of law, to be drawn from the terms of the instrument of grant, interpreted and explained by the facts and circumstances thus found by the jury.

When no dimensions of a way are expressed, but the object is expressed, the dimensions must be inferred to be such as are reasonably sufficient for the accomplishment of that object. In the present case, the dimensions of the way are not expressed; but the purpose for which it was reserved is expressed, and it goes far to enable us to ascertain the dimensions. It was for the purpose of carrying wood, or any other thing, into and from the grantor's " housing and land adjoining, for the use and accommodation thereof." The grantor's adjoining house, being a dwelling-house, it is to be limited to articles usually carried to or from a dwelling-house, in its ordinary occupation as such. It thereby excludes the presumption that it was to be adapted to the carriage of merchandise, such as bales, boxes, or casks. Wood must be taken to be fire-wood, and not timber or wood to be used for the purposes of manufacturing. And "any other thing," though in terms of the largest sense, must be construed to mean other thing of like kind used in a dwelling-house; as vegetables, provisions, furniture, and the like. Without examining it more minutely, we are satisfied that the right reserved was that of a suitable and convenient foot-way to and from the grantor's dwelling-house, of suitable height and dimensions to carry in and out furniture, provisions and necessaries for family use, and to use for that purpose wheelbarrows, hand-sleds, and such small vehicles as are commonly used for that purpose, in passing to and from the street to the dwelling in the rear, through a foot passage, in a closely built and thickly settled town.

Upon these views of the rules and principles of law applicable to the present case, the court are of opinion that the defendants had a perfect right to build over the said passage way; it being one of the beneficial uses of the property which could be made, and which, as owners, they had a right to make, consistently with the full and free enjoyment of the foot way on the part of the plaintiff.

We think that this opinion is not inconsistent with the opinions heretofore given at nisi prius, and by the whole court, though perhaps the point was not stated with sufficient precision for the purposes of deciding definitely the rights of these parties, and putting an end to the long controversy which has subsisted between them. For this purpose, it is

necessary to distinguish accurately between an act, which is of itself an infringement of another's right, and an act which of itself is not an infringement of the right of another, but which, in its consequences, may cause a damage to that other. In the former case, no special damage, no actual pecuniary loss, need be stated or proved; the law presumes that a party sustains some damage from the infringement of his right, and enables him to maintain an action, whether he have suffered actual damage or not. And in such case, it is often highly proper that a party should bring his action, though he may expect to recover nominal damages only, for the purpose of vindicating his right, and thereby preventing the adverse party from acquiring a right by long and uninterrupted use. 16 Pick. 247.

But there is another class of cases, where although the act complained of may not be unlawful, or, if unlawful, not an infringement of any right of the plaintiff, no action can be maintained without alleging and proving a special and particular damage to the plaintiff; and the damages to be recovered are confined to an indemnity for the loss thus proved to have been sustained. The plaintiff sets forth the act done, and alleges that by means thereof, he sustained the damage complained of, technically called declaring with a per quod. As where the plaintiff complained that while he was proceeding along a navigable creek with his barge laden, &c., the defendant obstructed the creek, per quod the plaintiff was compelled to carry his goods around, at a great expense. In such case the action lies for the special damage immediately occasioned by the obstruction; but it would not lie for the obstruction itself, without special damage, because although it was an infringement of a public right, and so was unlawful, yet it was not an infringement of the peculiar right of the plaintiff. Rose v. Miles, 4 M. & S. 101. So for special damage occasioned by obstructing a highway. Greasly v. Codling, 2 Bing. 263. So by a proprietor of land through which a watercourse runs, against a proprietor higher up, where the gravamen of the complaint against the upper proprietor was, that by damming up the water above, it came with greater impetuosity, and thereby injured his banks. Williams v. Morland, 2 Barn. & Cres. 910; s. c. 4 Dowl. & Ryl. 583. But it might be otherwise, where the plaintiff had acquired a right to the water by appropriation, and the complaint was for the infringement of that right. Bealey v. Shaw, 6 East, 208. It is manifest, we think, that this distinction has become important in the present case, because a jury have heretofore given one dollar for this item, treating it as a case of mere nominal damages; whereas, the verdict now under consideration assesses that item of damage at $350.

We have stated that the opinion now expressed will not appear, upon strict comparison, to be inconsistent with those formerly expressed, though in the former cases the rule prescribed may have been less precise and definite. It may, therefore, be proper to review them. On the first trial, the jury were instructed as to the passage way, that the reser

vation in the deed was answered, by giving the plaintiff a passage way as convenient as it was when the reservation was made; that if the present passage way was not so wide as before, and was not open above, yet if it was as convenient, &c.; but that the defendants had no right to narrow or cover the passage, so as to cause serious inconvenience to the owners, &c. The observation of the court, when this part of the case came before them on a motion for a new trial, was, that by the case it appeared that the passage had been narrowed and arched over, and rendered darker and less convenient. And in reference to the instruction to the jury, that so far as the plaintiff had suffered inconvenience from the alteration, he was entitled to recover damage, the court say that this was correct. 20 Pick. 295.

It is manifest, we think, that in these remarks, so far as they related to the dimensions of the passage way, the court considered that the passage way, as it was, in point of convenience, at the time it was reserved, and the width of it, for the purpose for which it was reserved, might be considered as equivalent, and that the one description was used instead of the other. For, in this same opinion the court say, that they are satisfied that a convenient right of way was reserved, but that its width was not fixed. 20 Pick. 295. But if it was to be a passage way as it existed at the time of the reservation, its width would have been fixed. In point of fact, as the buildings then stood, the passage used was of irregular breadth, being for a part of the way eight or nine feet wide. As a definition of the plaintiff's right, it would have been more exact to say, that it was a right of way suitable and convenient for the purpose for which it was reserved, namely, as a foot way from a public street to a dwelling-house in the rear, and for carrying wood and other articles, incident to the occupation and enjoyment of such a dwelling-house. This admits of any alteration and improvement in the estate over which the easement is reserved, consistent with the preservation and maintenance of the right of passage itself. So it has been held in analogous cases. A grant of water, sufficient to supply a grist mill, limits the quantity of water, but not the use to which it is to be applied. If, in the progress of improvement in the useful arts, the owner removes the grist mill, and erects a cotton factory, it is held, that he has a right to do so, taking no more water for his factory, than he had a right to take for his grist mill. Such construction is conformable alike to the rules of law, and to the principles of public policy. The law, carrying into effect the intention of the parties, does not intend to restrict the right of ownership of the real estate subjected, further than is necessary to give full effect to the easement; and public policy requires, as well in cities as elsewhere, that an owner of real estate should be allowed to make all the improvements upon it, which can be made consistently with the just rights of others.

So far as the remark of the court applied to the darkening of the passage way, it did not go on the distinction between doing an act, which the defendants have no right to do, by building over the passage

way, and doing that which they had a right to do, but doing it in such a manner as to cause some slight consequential damage to the plaintiff. Besides, the damages given by the jury on that ground, being merely nominal, and the instruction not being wrong in point of law, and especially as the plaintiff was entitled to hold his verdict for other damages, the court had no good reason for setting aside the verdict, even though it might have appeared to them, that, upon the evidence, no case for any consequential damages was established in point of fact.

In saying, that the actual condition of the way, at the time of the reservation, is not the measure and definition of the plaintiff's right, it is necessary to guard against two misconstructions of this remark. We do not mean to say, that when a way is actually located and fixed by definite and visible objects, as by buildings or fences, the grant or reservation may not refer to such way actually existing, and that the limits then would not be fixed by the act of the parties themselves. The contrary is true in such case. Salisbury v. Andrews, 19 Pick. 250. Even where an estate is granted with all ways "appurtenant," and there is, strictly speaking, no way appurtenant, but there is an actually existing way over the grantor's other land, it shall be taken, that the way actually used and existing, though miscalled "appurtenant," shall pass; because it must be understood that such was the intent of the parties. Morris v. Edgington, 3 Taunt. 24. The other misconstruction, against which we would guard, is this: when it is said, that in such a case as the present, the actually existing state of the passage way, at the time of the reservation, is not the measure or description of the right reserved, we do not mean to say, that such state of the passage way may not be evidence, and often evidence of a very forcible and determinate character, to prove what is reasonable and convenient, and what those most conversant with the matter have, by their practice, shown to be in their opinion most reasonable and convenient, under given circumstances. And this goes far to show what was in the mind of the court, when they seemed to consider the actual condition of the way, at the time of the reservation, as equivalent to the convenient passage way reserved by the deed.

This cause again came before the court in June, 1838. The judge, on that trial, had instructed the jury, that as to arching over the passage way, if it did not occasion any inconvenience, by darkening it or otherwise, in respect to the uses for which it was reserved, the plaintiff would not be entitled to any damages on this ground. 20 Pick. 298. This is wholly consistent with the opinion now expressed, but without stating definitely what were the rights of the defendants, as owners, over the passage way, and therefore less explicit than it might have been useful to state it, under the circumstances. In regard to the breadth, the jury were instructed, that the defendants were bound to maintain a passage way, equal in breadth to the distance between the old gate posts, and otherwise convenient for the uses for which it was reserved. 20 Pick. 299. The former part of this direction was, we