Mershon v. Fidelity Insurance, Trust & Safe Deposit Co.

Per Curiam, From the facts as found by the learned court below it is established that the plaintiffs as abutting owners have an absolute right to a surface easement of passage over the alleyway in question, unimpeded, and substantially unchanged from the condition in which it has been heretofore used. The excavation made by defendants, even though permanently closed by an iron grating, is a substantial interference with the right of passage. It may not be necessary to “ solidly fill up with earth- the area way ” as commanded by the decree, though it has not been shown to us how that can be avoided consistently with the full restoration of the plaintiffs’ right of passage. But it is so argued by appellants and that raises a question of fact into which the court below may inquire if sufficient basis for a modification of the decree in that respect shall be hereafter presented.- With the reservation of leave to apply to the court below for such modification the decree is affirmed upon the opinion of the court. Decree affirmed with costs.