Low v. Streeter

Bingham, J. The plaintiff owns the rights of Joseph Low in the eight feet south of the Low block, after he conveyed to Hill. The defendant owns the land and rights conveyed by Joseph Low to Brackétt, and the south wall of the Low block is to be taken as his south line. He also has a right of way over the passway between the Low block and Athenian Hall, from the street to the rear of the Low building. Neither party owns the eight feet of land immediately south of the Low block if Joseph Low conveyed it to Hill; but if the deeds of Low and Hill only dedicated the sixteen feet of land as a common passway to the parties, each retaining the ownership of his land, then the plaintiff is the owner of the northerly eight feet, subject, to the defendant’s easement, and may recover in trespass. A grant of a right of way over land does not convey the soil, or any corporeal interest in it, and it necessarily follows that such an owner cannot prevent even a trespasser from using the land, if his use does not impede the exercise of the right of passage. In other words, an owner whose land is burdened with a right of way has all the rights and benefits of the soil consistent with the reason *39 able use of the way. Pond Co. v. Chandler, 9 Allen 159, 163 ; Richardson v. Palmer, 38 N. H. 212, 220; Welch v. Wilcox, 101 Mass. 162, 164 — S. C., 100 Am. Dec. 113, n. 115, 118; Godd. Ease. 4. The inquiry, then, is as to the legal effect of the deeds which passed between Low and Hill, July 24, 1844, and especially of the deed of Low. The language in each is clearly sufficient to convey the land described; but it is claimed by the plaintiff that such was not the intention of the parties, and that the deeds should be construed as the parties understood them when they were executed. This is undoubtedly the law when the intention is proved from competent evidence. In the present case, the deeds, the situation of the parties, and the purpose they had in view, are material. The parties could have accomplished their apparent purpose in a more direct way than the one they adopted. They desired to make the sixteen feet a passway common to both. This did not necessitate a conveyance of the fee in the land of one to the other, encumbered with the liability of legal controversies like the one now before the court; still, it was a way which the parties could adopt, and the language used in both of the deeds is so direct and complete as to leave very little doubt that both Low and Hill intentionally'adopted the method of each conveying his land in fee to the other as a part of the transaction. After Joseph Low executed his deed he had no interest in the eight feet next to his block except a right of way over it. This the plaintiff has; but it is found that he is not obstructed in its reasonable use by the things complained of. Exceptions overruled. Allen and Carpenter, JJ., did not sit: the others concurred, Doe, C. J., concurring in the result.