Dickinson v. Whiting

Devens, J. The principal question raised by the bill of exceptions concerns the construction of the clause in relation to the use of the lane in the deed of Richardson, in 1842, by which Richardson (who then owned the entire tract, including the tracts now held respectively by the plaintiff and the defendant) conveyed to the defendant’s grantor the portion of the tract lying northerly of the northerly side of the lane. Immediately following the description of the premises conveyed were the words, “with a privilege for him [the grantee], his heirs and assigns, to use the lane on the south side of said premises to drive his cattle to pasture and his teams for the convenient occupation of said premises.” The defendant has acquired the land and rights conveyed by said deed; and it is found as a fact that there has been no subsequent user sufficient in any way to change the rights of the parties, as they exist under this deed. At the time of the conveyance, there was a defined way about twenty-five feet in width, bounded on each side by a stone wall, with bar-ways at intervals opening into adjacent fields, extending from the highway to a point near the river, which was, on the west side, the boundary of the whole tract. The conveyance made was not of a general right of way over the grantor’s premises convenient for the grantee, the width, direction, and general character of which would be thereafter determined by various circumstances. The “ lane on the south side of said premises ” was fixed by the permanent stone walls which defined it, and the grant of the use of the lane was the grant of a right of way in the lane as thus located and defined. To construe it as anything less would be to do injustice to the grantee, who, having found a way such as that described in the deed, was able to determine, from its width and direction, when he closed the purchase, whether it was sufficient for his purposes. It was granted “ for the convenient occupation ” of the premises [417] conveyed, and the grantee was entitled to all the convenience which, as it then existed, it could afford in the management of the farm on which it bounded. Salisbury v. Andrews, 19 Pick. 250. Tudor Ice Co. v. Cunningham, 8 Allen, 139. Welch v. Wilcox, 101 Mass. 162. Tucker v. Howard, 122 Mass. 529. Nash v. New England Ins. Co. 127 Mass. 91. If the defendant was entitled to a right- of way in the lane as it existed at the time of the deed under which he claims, then anything erected therein which, for practical purposes, made its use less convenient and beneficial than before, was an obstruction which wrongfully interfered with the privilege to which he was entitled. As such obstruction, the defendant had a right peaceably to remove it. The finding of the judge who presided, that the fence erected by the plaintiff across the lane, although with a gate twelve feet wide, which could readily be opened and closed, even if, when opened, it afforded sufficient space for the passage of teams and cattle, was an obstruction in the practical use of the lane, was fully justified. The necessity of opening and closing the gate, as well as the more limited space through which the defendant must conduct his teams and cattle, would materially interfere with his convenient use of the lane. Williams v. Clark, 140 Mass. 238. Exceptions overruled.