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limit to what might be done in this manner. The passage way was designed as a thoroughfare for the accommodation of many persons. In appearance, it is on the plan indistinguishable from a narrow street. It is connected at each end with broad and important streets. It was to be kept open. No gates could be put at the ends of it. It was to be co maintained,” that is, kept in good order for use. Its width shows that it was designed for vehicles drawn by horses, as well as for travellers afoot. The supplies for all the houses on both sides of it, for its entire length, would be chiefly deliverable, and all refuse matter removable, by its means. Thus we have a passage way of defined dimensions, in the rear of all the houses on two broad streets, designed for use by all who may have occasion to seek the rear entrances to any of the houses on either street, — a passage way available also for police purposes and for use in the extinguishment of fires, — a passage way which is to be maintained, and kept open, and designed for horses and wagons, in a part of a large city which is designed to be wholly occupied by dwellings of a high class, to which air and light and prospect are not only desirable, but essential, in the rear as well as in the front, with no limitation to the use which may be made of it or of the persons by whom it may be used.
In view of these considerations, we think the language of the stipulation was designed to signify a separation of sixteen feet at least between the rear portions of the buildings abutting on the passage way. A passage way sixteen feet wide was not merely to be kept open at the ends, but open to the sky throughout its entire length, for the general convenience and benefit. It is easy to see that the rights of others would be lessened, upon any other construction. The opposite owner, who might not wish in like manner to build into the passage way, would have in the rear of his house a space just so much the narrower. The adjacent owner on the same side, who did not wish to occups a part of the passage way with his building, would have light, air, and prospect cut off. The right themselves to occupy the passage in this manner would be no equivalent to owners who did not wish to build their houses so as to extend back to the line of it.
There is nothing in the facts proved at the hearing and reported to us which in any way controls the construction thus put upon the language of the stipulation. The result is, that a decree must be entered for the removal of the projections.
NOTE. — MISCELLANEOUS EASEMENTS. – The principal easements are those above specified. Easements cannot be created ad libitum. See Norcross v. James, 140 Mass. 188, post, p. 511. Among easements which have been allowed are, to get water from a stream, Race v. Ward, 4 E. & B. 702, ante, p. 10 ; to fasten a sign-board to the wall of a house, Moody v. Steggles, 12 Ch. D. 261 ; to drive a pile in a river, Lancaster v. Eve, 5 C. B. N. S. 717; to pile and hoist boxes, Richardson v. Pond, 15 Gray, 387. Rights to pews and burial rights are of a very varied character: sometimes a freehold right in the soil is created ; sometimes an easement; sometimes the right is personal property ; sometimes it is only a license.
1 The rest of the case is omitted.
E. Remedies for Disturbance of Easements.'
JESSER v. GIFFORD.
[Reported 4 Burr. 2141.] This was an action for erecting a wall, whereby the plaintiff's lights were obstructed.
The declaration contained two counts: in the second, the plaintiff counted as the reversioner. And a verdict had been given for the plaintiff, and general damages. .
On the second day of this term, Mr. Serjeant Burland moved in arrest of judgment; and had a rule to show cause.
His objection was, — that this action will not lie by a reversioner ; being only an injury to the person in possession.
Mr. Justice Aston now said he had looked into it, and had found a case S. P. with the present; and accordingly cited Tomlinson v. Brown, as of H. 28 G. 2, but it was determined in Easter Term, 1755. It was an action brought by the owner of the inheritance, for a nuisance in obstructing lights and breaking his wall. A general verdict for the plaintiff. Mr. Norton, in arrest of judgment, objected, that a temporary nuisance can't be an injury to the inheritance ; it may be abated before the estate comes into possession ; and he cited Cro. Jac. 231, Some v. Barwish; and observed, that if this would hold, the defendant would be liable to a double action; one, by the possessor of the estate ; the other, by the reversioner. Mr. Crowle showed cause on behalf of the plaintiff; and insisted that it was a damage done to the inheritance : if the reversioner wanted to sell the reversion, this obstruction would certainly lessen the value of it. The court were of opinion, that an action might be brought by one, in respect of his possession, and hy the other in respect of his inheritance for the injury done to the value of it. LORD MANSFIELD. That is decisive.
Whereupon the rule was discharged. 1 Under this head are collected cases illustrating the question how far a person who is not at present enjoying an easement may have a remedy for its obstruction. For a similar question with regard to natural rights, see Sturges v. Bridgman, 11 Ch. D. 852, ante, p. 57; Dana v. Valentine, 5 Met. 8, ante, p. 61 ; Sampson v. Hoddinott, 1 C. B. N. S. 590, ante, p. 119; Crossley v. Lightowler, L. R. 2 Ch. 478 ; Pennington v. Brin. sop Hall Co., 5 Ch. D. 769, 772 ; Harrop v. Hirst, L. R. 4 Ex. 43; Blodgett v. Stone, 60 N. H. 167.
2 See Bower v. Hill, 1 Bing. N. C. 549 ; Metropolitan Ass. v. Petch, 5 C. B. N. S. 504.
SHADWELL V. HUTCHINSON.
Nisi PRIUS. 1830.
[Reported 4 C. & P. 333.] ACTION on the case, for obstructing an ancient light to the injury of the plaintiff's reversionary interest. This was a second action for the obstructing the same light, for which the plaintiff recovered in the case of Shadwell, Knt., v. Hutchinson (reported 3 C. & P. 615). The declaration was exactly in the same form, except that the time of the Obstruction in this case was stated to be from the 28th day of November, 1828, to the time of the commencement of the present action. Plea — Judgment recovered for the same identical grievances." "Replication — That the recovery in the former action was not for the “same identical grievances.”
An admission was put in, by which the parties admitted that the obstruction of the light was in just the same state as at the time of the former action; and that it had not been increased, altered, or removed.
Campbell and Coleridge, for the plaintiff.
LORD TENTERDEN, C. J. The plaintiff, by his declaration, complains of an injury occasioned by the continuance of the obstruction of this light, from November, 1828, to the commencement of the present action. That is the grievance he complains of now, and, unless I could say that the grievance during that time is the same grievance as the obstructing the light between two other and earlier dates, the plaintiff is entitled to a verdict.
Verdict for the plaintiff – Damages £100. In the ensuing term, Curwood moved for a new trial ; and contended, that there was no real substantial damage to the reversion, but only an ideal damage, for which the reversioner had recovered ; and that the continuance of the obstruction caused no new damage to the reversion, although it did to the possession. But the court refused the rule.
KIDGILL v. MOOR.
[Reported 9 C. B. 364.] This was an action upon the case, by a reversioner, for an obstruction of an alleged right of way.
The declaration stated, that, before and at the time of the commit
ting of the grievances by the defendant as thereinafter mentioned, the plaintiff was, and continually from thence hitherto had been, and still remained, seised in his demesne as of fee of and in one undirided seventh part, the whole into seven equal parts to be divided, of a certain close and premises, with the appurtenances, situate in the parish of Bradfield, in the county of Berks, as tenant in common thereof with William Kidgill, &c., the said William Kidgill, &c., then being possessed of the other six undivided parts of the said close and premises, with the appurtenances; that the said undivided seventh part of the said close and premises, with the appurtenances, during all the time aforesaid, was, and still remained in the possession and occupation of Joseph Kidgill, as tenant thereof to the plaintiff, the reversion thereof, expectant on the determination of the said tenancy, then and still belonging to the plaintiff; and that the plaintiff, during all the time aforesaid, of right ought to have had, and yet of right ought to have, for his tenants, occupiers of the said undivided seventh part of the said close, &c., a certain way from and out of the said close, unto, into, through, and over a certain other close of the defendant, in the parish aforesaid, from and out of the same, unto and into a certain common and public highway in the county aforesaid, and so back again from the same common and public highway, unto, into, through, and over the said close of the defendant, unto and into the said first-mentioned close and premises, to go, pass, and repass, on foot, with horses, wagons, and carriages, every year, and at all times of the year, at their free will and pleasure ; get that the defendant, well knowing the premises, but wrongfully and unjustly intending to injure, prejudice, and aggrieve the plaintiff in his said reversionary estate and interest of and in the said undivided seventh part of the said close and premises, with the appurtenances, whilst the said undivided seventh part of the said close was so in the possession and occupation of the said Joseph Kidgill as tenant thereof to the plaintiff, and whilst he, the plaintiff, was so interested in the said undivided seventh part of the same, as aforesaid, to wit, on the 1st of May, 1849, and on divers days and times between that day and the commencement of this suit, wrongfully and unjustly locked, chained, shut, and fastened a certain gate standing in and across the said war, and wrongfully and injuriously kept and continued the said gate so locked, chained, shut, and fastened, in and upon the said way, for a long space of time, to wit, from thence until the commencement of this suit, and thereby during all that time wrongfully and injuriously obstructed the said way, - by means of which said several premises the plaintiff had been and was greatly injured, prejudiced, and aggrieved in his said reversionary estate and interest of and in the said undivided seventh part of the said close and premises, with the appartenances, so in the possession of the said Joseph Kidgill as tenant thereof to the plaintiff; and also by means of the committing of the said grievances by the defendant as aforesaid, one J. G. Lewis, who, before the committing of the said grievances by the defendant, had contracted and
agreed with the plaintiff for the purchase by him from the plaintiff of the said reversionary estate and interest of the plaintiff, for a large sum of money, to wit, the sum of £300, and who would otherwise have completed the said purchase, and have paid to the plaintiff the said sum of money, was deterred and prevented from completing the said purchase, and from paying the said sum of money to the plaintiff, and from thence continually had wholly declined to complete the said purchase, or to pay the said sum of money, or any part thereof, to the plaintiff; and thereby the plaintiff had been, and still was, hindered and prevented from completing the sale of his said reversionary estate and interest to the said J. G. Lewis, and had thereby not only lost and been deprived of the advantage and emoluments which he would have derived and acquired from the completion of the sale of his said reversionary estate and interest to the said J. G. Lewis, but had been forced and obliged to pay, lay out, and expend divers large sums of money, to wit, the sum of £100, in and about the said contract for the sale of his said reversionary estate and interest, and expenses incidental thereto, - to the damage of the plaintiff of £200, &c.
The defendant pleaded, — first, Not guilty ; secondly, A plea, traversing the seisin of the plaintiff as alleged in the declaration ; thirdly, A traverse of the alleged right of way: whereupon issue was joined.
The cause was tried before Rolfe, B., at the Summer Assizes for the county of Berks, in 1849, when a verdict was found for the plaintiff upon all the issues, damages 40s.
Whateley, in Michaelmas Term last, obtained a rule nisi to arrest the judgment, on the ground that the declaration disclosed no cause of action, the alleged obstruction of the right of way not being shown to be an injury of a permanent nature, so as to affect the reversion. He cited Jesser v. Gifford, 4 Burr. 2141 ; Jackson v. Pesked, 1 M. & Selw. 234; Baxter v. Taylor, 4 B. & Ad. 72, 1 N. & M. 11; Bright v. Walker, 1 C. M. & R. 211, 4 Tyrwh. 509 ; and Tucker v. Neroman, 11 Ad. & E. 40.
Keating and Matthews, now showed cause. Whateley and Piggott, in support of the rule. MAULE, J. I think the declaration in this case — which is objected to after trial and a verdict for the plaintiff, and which alleges that the defendant wrongfully and unjustly locked, chained, and fastened a certain gate in and across a certain way, and wrongfully and injuriously kept and continued the same so locked, chained, and fastened, and so obstructed the way, whereby the plaintiff was injured in his reversionary right and interest - states a cause of action which entitles the plaintiff to damages ; and that we cannot arrest the judginent. It may have been that no evidence was given at the trial of any such obstruction as could be a permanent injury to the plaintiff's reversion That might
i He also moved for a new trial, on the ground that the verdict was against the weight of evidence ; but the rule as for a new trial was refused. - REP.