Page v. Young

Colt, J. Both parties in this case claim title to the land occupied by them on the south side of Broad Canal in Cambridge, by mesne conveyances from certain persons who in 1806, being then owners of the same, and of other land in the vicinity, entered into an agreement among themselves, to devote certain portions of their land to canals, then or thereafter to be dug for the use of the proprietors and future owners of lots abutting on the same. Broad Canal was one of those laid out under this agreement. The plaintiff’s land bounds on this canal, and the original agreement defines the extent and character of the incorporeal right to which he has thus acquired title. The defendants, as owners of land bounding on the same, are governed in their use of it by the restrictions and limitations in favor of adjoining estates, which the original owners of the whole saw fit to impose ; and the court will enforce the mode and extent of enjoy [316] ment so established, in favor of any owner who is substantially injured. By the original agreement of 1806, the width of the canal is fixed at eighty feet, and the right of free passageway for vessels and other craft, to and from the wharves and landing-places, is given to all persons who from time to time shall become the owners of lands abutting on the same and holding under the parties to it. Upon the facts agreed at the hearing, there can be no doubt that the structure erected by the defendants is a substantial injury to the plaintiff’s right of way. To some extent, it hinders and obstructs navigation, and increases the expense of transportasion to and from his premises. He is entitled to the'relief he seeks. Schwoerer v. Boylston Market Association, 99 Mass. 285. Proprietors of Long Wharf v. Central Wharf Co. 14 Allen, 271. Parker v. Nightingale, 6 Allen, 341. Whitney v. Union Railway Co. 11 Gray, 359. A demurrer to the bill for want of equity was added to the defendants’ general answer. The case was not set down for hearing upon the demurrer, but was submitted before a single judge for a final hearing upon the pleadings and facts agreed, and was reserved by him for the consideration of the full court. It is now objected that the bill cannot be maintained, because there is a plain, adequate and complete remedy at law. But after a case is heard upon bill, answer and proof, and when the point was not raised at the hearing and is not reserved in the report, the objection must be considered waived. Dearth v. Hide & Leather National Bank, 100 Mass. 540. There would seem to be little doubt of the jurisdiction of the court in equity. It was held to exist in the cases above cited. The decree must be for the plaintiff, directing the removal of the structure complained of, with a perpetual injunction against its future erection, and with costs. Ordered accordingly.