Killion v. Kelley

Morton, J. Nourse, one of the plaintiffs, being the owner of a tract of land, divided it into lots, and laid out through it a private way twenty feet wide, now called Regent Court. He conveyed to the other plaintiffs and the defendant, severally, lots bounding upon this private way. There is no doubt that his deeds conveyed to the several grantees a right of way over this private way. O'Linda v. Lothrop, 21 Pick. 292. Tufts [52] v. Charlestown, 2 Gray, 271. Gaw v. Hughes, 111 Mass. 296. If we assume, as was held at the hearing, that the defendant’s deed gave him no right in the passageway, except the right to use it as a way for the purpose of passing and repassing thereon, the question is whether the acts done, and proposed to be done by the plaintiffs, were a violation of this right of the defendant. If they were, he had a right to forbid and prevent them by peaceable means, and this bill to enjoin him from doing so cannot be maintained. It is well settled that where there are several owners in common of a private way, each owner may make reasonable repairs which do not injuriously affect his co-owners, but he cannot make any alteration of the course of the way, or any change in its grade or surface, which makes the way less convenient and useful to any appreciable extent to any one who has an equal right in the way. Thomas v. Poole, 7 Gray, 83. Brown v. Stone, 10 Gray, 61. Richardson v. Pond, 15 Gray, 387. Meehan v. Barry, 97 Mass. 447. It appears by the report that, Regent Street having been raised by the city, the plaintiffs commenced to fill and raise- the grade of Regent Court opposite the land of the defendant which is at the corner of Regent Street and Regent Court, and that the -defendant interfered, and by threats and otherwise prevented the prosecution of the work. It also appears that by raising the surface of the court to the grade contemplated by the plaintiffs, “ the court would be raised two or two and a half feet above the level of the defendant’s present roadway to his stable and sheds, and of the landing at the basement door of his house, so as to require stairs or steps by which to descend from the court to his said door.” We are of opinion that the plaintiffs had no right to do this without the consent of the defendant. The work they had commenced would, when completed, make a material change in the court, which would dimmish the convenience of the defendant in the use of his right of way. The fact found by the presiding justice that, by building stairs or steps, by constructing roadways or causeways, or otherwise grading his land, he can adapt it to the raised grade of the court, so as to have a reasonably convenient way, does not give the plaintiffs the right to [53] make this change. Even if the plaintiffs were willing to pay him the expenses of thus adapting his land, which they are not, he could not be compelled thus to change his estate against his will. Neither the plaintiffs nor a court of equity can require him to do this without violating his right to the uninterrupted enjoyment of his estate. We are therefore of opinion that upon the facts shown at the hearing the plaintiffs cannot maintain their bill. Bill dismissed.