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south of the northerly line of the defendant's land and extending from the line of the plaintiff's land to Prescott Street; and that the defendant be forever enjoined not to place, erect, or maintain any wall on any part of the land included in said way in such manner as to obstruct the plaintiff in the enjoyment of a foot way over the whole length and breadth thereof; but nothing in this decree is to be construed as forbidding the defendant temporarily to use the land included in said way in

any reasonable manner for the purpose of repairing said foot way, or for

any other purpose which shall not interfere with the plaintiff's enjoyment of said way, nor as forbidding him to extend any building over the same, at such height, not less than eleven feet above the ground, as not to interfere with the reasonable use and enjoyment of said foot way by the plaintiff, and in such manner as not to be dangerous to persons using said way. It is further ordered, adjudged, and decreed that the plaintiff recover her costs, to be taxed by the clerk.”

The plaintiff appealed; and the judge reported the case for the determination of the full court, the decree to be affirmed or such other decree to be entered as justice and equity required. The pleadings and the report of the case on which it previously came before this court were made part of the report. So much thereof as is necessary to an understanding of the case appears in the opinion.

J. N. Marshall and M. L. Hamblet, for the plaintiff.
D. S. Richardson and G. F. Richardson, for the defendant.

DEVENS, J. The rights of the plaintiff depend upon the construction to be given to the reservation in the deed of her father, Nathaniel Wright, in 1857. Wright in that year sold to William H. Burnap, whose rights have been acquired by the defendant, a parcel of land on Prescott Street by a deed containing the following: “Excepting however and reserving to myself my heirs and assigns a passage way four feet wide, in, through and over said premises from said Prescott Street to my tenement on the westerly side thereof.” The plaintiff has acquired by inheritance, and by deed from the other heirs, the parcel of land on which was the tenement referred to, and the right of way orer the defendant's land, which was reserved in the deed to Burnap.

The effect of the reservation was of a right of way only; and at the former hearing of this case it was held that, the way being of fixed width and having been definitely located by the subsequent acts of the parties interested, the plaintiff was entitled to have it kept open where it was thus located, and therefore that the defendant could not erect a wall sixteen inches in width on the northerly side of it, even if a way four feet in width was left for the plaintiff's use, as the plaintiff could not be compelled to accept a way substituted for the one to which she was entitled, even if equally convenient and useful. Gerrish v. Shattuck, 128 Mass. 571.

The contention of the plaintiff now is that the defendant cannot be permitted to extend any building over the way thus located, as it would necessarily render the passage way darker and less agreeable, and would

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also interfere with the plaintiff's enjoyment of light and air at his building. It is found by the original report, that eleven feet was a reasonable height for the way in question, that it never had been used for a carriage way, that it was not suitable for such a way, nor intended to be so used, and that the means of going to and from the plaintiff's lot would be practically as convenient and useful as any she had heretofore enjored.

Upon this state of facts, Atkins v. Bordman, 2 Met. 457, is apparently decisive of the case before us. It was there held that the owner of land over which a passage way had been reserved might lawfully cover such passage way with a building if he left a space so high, wide, and light that the way continued substantially as convenient as before for the purposes for which it was reserved. Nor can a distinction be drawn between that case and the present, as the plaintiff contends, becalise there the way reserved was a convenient way, while here the way had been definitely located by the acts of the parties. Such location had reference only to its position upon the surface of the soil, and, even if when thus defined the way was actually open, there was no location

was concerned except so far as it was reasonably necessary for the use of such a way. The plaintiff has obtained no right to light and air above the way ; she has only the right of passing and repassing, with such incidental rights as are necessary to its enjoyment. The defendant has all the rights and benefit of the ownership of the soil consistent with this easement. Perley v. Chandler, 6 Mass. 454; Atkins v. Bordman, ubi supra.

The plaintiff further objects to the term “ foot way used in the decree appealed from ; but this term is used in describing the passage has only to distinguish it from a horse or carriage way, for which it had never been used, and for which it was not suitable. It was not intended thereby to prevent the use on such way of vehicles such as are usually drawn or propelled by foot passengers.

In one respect the decree entered requires modification by an addition thereto. The bill avers and the answer admits the digging up by the defendant of the way (as it has been held by this court to exist) for its entire length and breadth to the depth of about ten feet, and the carrying away of earth therefrom. The defendant had no right thus to disturb the plaintiff in her enjoyment of her easement, and he should be ordered to fill up the excavation so far as it interferes with the surface of the way, or otherwise restore the way so that it shall be as firm, sound, and convenient as it was when his operations commenced. Tucker v. Hovard, 128 Mass. 361; Nash v. New England Ins. Co.,

127 Mass. 91.

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The defendant calls our attention to the first report, where it is found " that the operations of the defendant would not be an unreasonable obstruction of the passage way or a violation of the plaintiff's rights.” But this finding was made upon the basis of the opinion held by the learned judge, that the way to which the plaintiff was entitled was one not definitely located, which opinion was erroneous.

The decree as entered should be amended, therefore, by inserting, after the clause ordering the defendant “not to place, erect, or maintain any wall on any part of the land in said way in such manner as to obstruct the plaintiff in the enjoyment of a foot way over the whole length and breadth thereof,” a clause providing that the defendant shall within thirty days from the final entry of the decree make the surface of said way as firm, sound, and convenient as it was before the earth was removed by him therefrom.

Decree accordingly.




[Reported 140 Mass. 329.] INFORMATION in equity, at the relation of the Harbor and Land Commissioners, to restrain the erection of bay windows or projections es. tending into or over a passage way in the rear of the defendant's house on the corner of Boylston Street and Exeter Street in Boston. Hearing before Devens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

H. N. Shepard, Assistant Attorney-General, for the plaintiff.
E. R. Hoar and F. A. Brooks, for the defendant.

C. ALLEN, J. The first question which we have considered is, whether an information in the name of the Attorney-General can be maintained to enforce the stipulations in respect to the passage way. In AttorneyGeneral v. Gardiner, 117 Mass. 492, it is declared that the Commonwealth, in devising the scheme of improvement of the Back Bay lands, acted in a twofold capacity, - as the proprietor of lands which it held and might sell, and as the sovereign power, authorized to lay out highways for the benefit of the public; and that, in the latter capacity, it might enforce these provisions and restrictions, against all persons bound by them, by an information in equity in the name of the Attorney-General. It is suggested that there is a distinction between that case and the present in this particular, that there the information was brought to enforce restrictions imposed against building on the front part of the lots bounding on the highway, for the benefit of the public, while here it is brought only in the interest of a few private owners of the adjacent property bounding on the passage way. But the Commonwealth properly reserved to itself the right to enter upon the premises hy its agents, and, at the expense of the party in fault, to remove or alter, in conformity with the stipulations, any building, or portion thereof, which might be erected on the premises in a manner or to a use contrary to the stipulations. Also, by the Pub. Sts. c. 19, $ 5. in all cases where the Commonwealth has such right, all grantees under

the deeds by which such right is reserved, and their legal representatives and assigns, may by proceeding in equity compel the board of Harbor and Land Commissioners so to enter and remove or alter such building or portion thereof.

It does not, in this case, appear affirmatively that the Commonwealth has sold all of its land in the neighborhood of the premises in question, and that it has no direct pecuniary interest in enforcing the stipulations. But assuming the fact to be so, it still has a duty to perform in this respect. Moreover, it may be said to have constituted itself a trustee for all the parties in interest, by the form of the stipulation, with the implied assent of each grantee who takes a deed containing it. In either aspect, it has such an interest and duty as to entitle it, by its proper officer, to sue in this court on behalf of the rights and interests of those who claim its protection.

The principal ground of objection to the maintenance of the information is, that the defendant has not infringed upon the stipulation referred to. Before considering this question in the light of the particular stipulation, it may be well to review some of the principal authorities cited at the argument. The leading case upon this subject is Atkins v. Burlman, 2 Met. 457, where it was held that the owner of land, over which his grantor had reserved a passage way, might, under the peculiar circumstances of that case, lawfully cover such passage way with a buildling, if he left a space so wide, high, and light that the way was substantilly as convenient as before for the purposes for which it was reserved. There, from the language of the reservation, construed in the light of the existing facts and circumstances, the right reserved was held to be

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 comunonly 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.” It was a use which was individual to the occuprint of that house, and not for the public. It was limited to certain simple uses, connected with getting things into and out of the house. It is obvious that the rights of the single person entitled under such circumstances to a passage way are not necessarily identical with the rights involved in the present case.

In Schwoerer v. Boylston Market Association, 99 Mass. 285, the provision in the deed establishing the passage way declared that it should “ not be subject to have any fence or building erected thereon ;” and this was held to give a right to have the entire court or passage way kept open to the sky, for light, air, and prospect, and every other accominodation and advantage which such an open court might furnish to an estate abutting upon it.

In Brooks v. Reynolds, 106 Mass. 31, the passage way was declared in the deed to be for light and air, and was always to be kept open for

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the purpose aforesaid ; and this was held to give a right to the open and unobstructed passage of light and air from the ground upwards, and throughout the length of the passage way.

The case of Salisbury v. Andrews, 128 Mass. 336, is more like the present case. There tenants in common had laid out their land in Boston with a passage way or court, upon both sides of which they had erected buildings fronting upon the way; and, by a deed of partition of the property, they provided that the way " shall be left and always lie open for the passage way or court aforesaid, for the common use and benefit of both of said parties and their respective estates.” It was held that the right of an owner under this deed was not simply a riglit of way, but a right to the use and benefit of an open court, extending as well to the light and air above as to actual travel upon the surface of the earth.

It is necessary now to look at the terms of the bond in which the stipulation relied on in the present case is contained, in order to see what it means. In the first place, it is to be borne in mind that the place in question is a part of a great scheme of improvement of waste land in a city, for streets and dwellings. The description of the land carefully defines the width and lines of the passage way : “ running one hundred and twelve feet to a passage way sixteen feet wide; thence westerly on the line of said passage way ; also all that part of said passage way sixteen feet wide that lies southerly of its centre line, and between the easterly and westerly lines of said premises extended ; reference being had to the plan accompanying the fifth annual report of the Commissioners on the Back Bay.” A reference to the plan shows a system of streets, covering an extensive territory, with passage ways for the accommodation of the houses on two streets, and for access to their rear entrances. “Any building erected on the premises shall be at least three stories high for the main part thereof, and shall not in any event be used for a stable or for any mechanical or manufacturing purposes." There were also other provisions showing that dwelling. houses of a high class were contemplated. Afterwards followed the particular stipulation relied on, “ that a passage way sixteen feet wide is to be laid out in the rear of the premises, the same to be filled in by the Commonwealth, and to be kept open and maintained by the abutters in common.”

It was contemplated that buildings might be erected on both sides of this passage way. Each owner might build up to the line of it. The defendant has done so, and has built bay windows from a point eight feet above the sidewalk, and extending from three to four feet into the passage way, to the top of his house, six stories high. If the opposite owner should do the same, the passage way between the buildings, extending upwards from a point beginning eight feet above the surface of the ground, would be eight feet, instead of sixteen, in width. It would be half closed up, so far as light and air and prospect are concerned. And, if this may be done, it is difficult to place any practical

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