Gerrish v. Shattuck

Soule, J. It appears that when Burnap, the grantor of the defendant, became the owner of the premises now owned by the defendant, the premises were so built upon that the only part of them over which access could be had by foot-passengers from Prescott Street to the building on the land now owned by the plaintiff, was a strip, on the northerly side, about four and one half feet wide. It appears further, that while Wright, the plaintiff’s father, the grantor of Burnap, was in possession of the plaintiff’s land, and Burnap owned the defendant’s land, a fence was standing on the northerly line of the Burnap land, and the tenants of Wright were wont to use the strip of land immediately south of this fence as a passageway to and from Prescott Street. From these facts it follows that the passageway four feet wide, which was reserved by Wright in his deed to Burnap, was fixed and located by the parties, along the northerly side of the land of Burnap, now owned by the defendant. The facts that a part of that space was used by Wright’s tenants as a flower-garden, while a narrow plank walk only twenty inches wide was maintained over another part of the space, and that the tenants did not invariably walk within four feet of the fence, have no tendency to show that the way was not located by the parties. The two considerations, that there was no place where the way could be enjoyed except along that strip, and that it was thus used and enjoyed, are decisive. O'Brien v. Schayer, 124 Mass. 211. The way being of a fixed and definite width, by the terms of the reservation, and having been located by the acts of the parties, the rights of the plaintiff therein are perfectly clear. She is entitled to have it kept open for its entire width, on the territory where it was located. The erection of a wall covering eighteen inches in width of the way, would create an obstruction, and infringe the plaintiff’s rights. Tucker v. Howard, 122 Mass. [575] 529, and 128 Mass. 361. Nash v. New England Ins. Co. 127 Mass. 91. The defendant proposes to erect a building covering his whole lot, with a wall along the northerly side of the lot sixteen inches thick, and which would push the northerly line of the passageway eighteen inches further south than the line as located by the parties. This he has no right to do; and he cannot compel the plaintiff to accept a substitute for the way to which she is entitled, although that substitute, if kept in order, may be convenient and useful. The plaintiff has therefore made a case which entitles her to the aid of the court in protecting her rights, and the decree dismissing her bill must be reversed. Decree for the plaintiff.