Johnson v. Kinnicutt

Shaw, C. J. This action is case for the obstruction of a private right of way, over a space twenty feet wide, and about one hundred and eight feet long, running back from a public highway, and adjoining the plaintiff’s land. The plaintiff claims title under a deed from Charles Paine and Henry Paine to himself. It is conceded, that these grantors owned in fee the block of stores on Main Street, in Worcester, a part of which is now occupied by the defendants, together with the land immediately back of the stores, and extending back westerly, so as to include the land conveyed to the plaintiff. On the 18th of July, 1843, Charles and Henry Paine, then being the owners thereof, conveyed a tract described as bounded easterly by a line twenty feet distant from the block of stores, and parallel thereto, to hold in fee, — there being a space twenty feet wide between the land conveyed and the block of stores,—“ together with the right of passing and repassing over the space of twenty feet between the west wall of the store aforesaid and the eastern line of the before granted premises.” The land thus conveyed being bounded on one side on Walnut Street, which is a public highway, the private way granted by the deed communicates with Walnut Street, and runs the whole length of the lot conveyed. The obstruction alleged is the placing of bales and boxes by the defendants on a part of the space adjoining the store occupied by them. The defendants insist, that notwithstanding the placing of such bales and boxes on a part of the space, it is no disturbance of the plaintiff’s right of way, because, as they allege, there is sufficient room left to afford the plaintiff a convenient way, and that he can claim no more. On the [157] contrary, the plaintiff claims, that he is entitled to an unobstructed use of the whole space between the parallel lines, for a way; and that any obstruction therein, to prevent such a use, is a disturbance of the right granted him.by the deed. This question must depend entirely upon a just construction of the terms of the grant. The grantors owned both estates in fee, and they might grant a more or less restricted right, by way of covenant, as they should think proper. The terms of their deed, delivered by the grantors, as their act, and accepted by the grantees, must be considered as the evidence of their agreement, and the measure of the right granted and acquired by it. Upon this question, the court are of opinion, that the words in the grant, “ the space of twenty feet between ” &c., describe the close, in, through, and over which, the plaintiff should have a right of way; but that they do not describe the limits of the way granted. It was therefore the grant of a convenient way, within those limits, adapted to the convenient use and enjoyment of the land granted, for any useful and proper purpose, for which the laud might be used, considering its relative position, in reference to Walnut Street, on which it bounded, — to Main Street,— to its location in reference to other parts of the town, — and other like circumstances. If it was well adapted to the erection of dwelling-houses or workshops, or a barn, or for the purposes of a garden, or the like, then the presumption of law is, that either or all such uses were contemplated, and the right of way would extend to the use of it, for foot passage, for horses, cattle, teams, wagons, or otherwise, as the convenient use of the land, for any such purpose, would require. From this view it follows, that what is a suitable and convenient way must depend on circumstances: first, as to the uses, to which the land granted might be conveniently put, to show what uses were in the mind of the parties, when the conveyance was made ; and, secondly, to determine whether the whole or what portion of the “ space ” must be kept open and unobstructed in order to afford the plaintiff a reasonable [158] and convenient right of way. It does not therefore necessarily follow, because a portion of this space was covered, that the plaintiff was thereby impeded in the use of a convenient way: it may or may not be so, and this depends on facts, which must first be inquired into and settled by a jury, unless the case should be otherwise disposed of by the parties. According to the agreement, the statement of facts is to be discharged, and the case stand for trial.