Nash v. New England Mutual Life Insurance

Endicott, J. We cannot give to the deeds the construction for which the defendant contends; namely, that the plaintiffs are not entitled to have the whole passageway, not less than eight feet wide, open and unincumbered, but are entitled to have. only a reasonable and convenient way within these limits. By the indenture of 1769, between John Jeffries and others, who were owners in fee of the passageway, over which a way then existed, it was agreed that it measured “ nine feet in the front on King Street,” and “at the upper end six feet four inches,” and that it should “ always lie open and unincumbered for the use of their estates.” In the covenants of the several parties each agrees that he “ will not at any time incumber or stop up the same, but that the same shall be open ” for the use of their respective estates, “ according to the measurements aforesaid.” This would seem to be sufficiently explicit, and to express as clearly as language can, not merely that a way existed over the parcel of land described, but that the way extended over the whole parcel, the limits of which way are exactly defined. The case does not fall within the rule laid down in Johnson v. Kinnicutt, 2 Cush. 153; but more nearly resembles Tucker v. Howard, 122 Mass. 529, where a description in a deed of a passageway, as “ five feet wide in the clear,” was held to be so exact that the way could not be narrowed or obstructed by the structure, which the grantees and their assigns had the right to build over it under another clause in the deed. By the mutual deeds, executed in 1826 by the owners of the estates now held by the parties to this bill, no change was made in the uses to which the way was devoted; but the result of the conveyances was to narrow the way at one end, and widen it at the other, leaving it, in the language of one deed, “ at least eight [97] feet wide in every part;” and of the other, “in no place less than eight feet wide.” The last-named deed refers to the indenture of 1769 for a more particular description, recites that the way had been kept open for a long time, and used in common by the owners, and from other recitals it appears that the way thus altered was to be used as it had been previously. It does not appear that any encroachment was made upon it until the defendant, soon after it took its deed in 1867, built the structures complained of, which reduced the width of the way in two places to less than five feet. Josiah P. Cooke and another, who then owned the estate, which in 1877 they conveyed to the plaintiffs, at once sent a written notice to the defendant, that they were entitled to all the rights secured to their estate in the passageway by the indenture of 1769, and forbidding the defendant from encroaching upon it, and requiring the removal of the structures placed there. The defendant paid no attention to this notice, and has since continued to obstruct the way. Soon after the plaintiffs took their deed in 1877, they notified the defendant to remove the structures, and upon refusal filed this bill. The case was heard before a single judge on the merits. It was set up in the answer, and urged as a defence to the plaintiffs’ case at the hearing, that there was a plain, adequate and complete remedy at law for the alleged injury. By the trial so had, it has been established, beyond question, that the plaintiffs have a right to the use of this passageway, eight feet wide, through its entire length; and that the structures placed therein by the defendant are of a permanent and continuous character, and have been and are maintained to the injury of the plaintiffs’ estate, after notice to remove them, given not only by the plaintiffs, but by their grantors. Upon these facts we are of opinion that the plaintiffs are entitled to relief in a court of equity. Creely v. Bay State Brick Co. 103 Mass. 514. Hartshorn v. South Reading, 3 Allen, 501. Cadigan v. Brown, 120 Mass. 493, 494. An action at law would not give to the plaintiffs an equally adequate and complete remedy, for reasons which are well stated in the case last cited. The case at bar is clearly to be distinguished from Washburn v. Miller, 117 Mass. 376, upon which the defendant relies. That was a bill to restrain the defendant from trespassing upon a pri [98] vote way, without showing that adequate compensation for such trespasses could not be recovered at law, and to enjoin him from prosecuting a suit at law which he had brought against the plaintiff for interfering with the use of the same way. We find nothing in the language of the opinion, as applied to the facts there presented, in conflict with our conclusion in this case. The question of loches was not raised at the hearing, and the report of the facts does not appear to have been framed to present it. It is not, therefore, open here. Decree affirmed, with costs.