Burnham v. Nevins

Mortou, C. J. The defendant does not deny that the plaintiff has the right to use the passageway as a means of access to his lot from Joy Street. The question in the casé is as to the extent of this right, and whether, in projecting bay-windows over the passageway in the manner alleged in the bill, the defendant is violating this right. The windows do not interfere with passing to and fro over the passageway. The bill alleges that there are two rows of windows, one beginning seven feet and nine and a half inches above the level of the passageway, extending upward sixty-five and a half feet, being fourteen and a half feet wide, and projecting eighteen inches over the passageway ; and the other beginning seven feet and three inches above the level of the passageway, being of the same height, eight feet and ten inches wide, and projecting over the passageway thirteen and a half inches. Such windows do not materially interfere with the use of the passageway for the ordinary purposes of passing on foot; but if the plaintiff has, as he contends, the right to have the passageway kept open and unobstructed from the ground upward for its full width of five feet, for the purposes of light and air, it is clear that his rights have been invaded by the acts of the defendant. The various cases which have arisen as to the right of the owner of land, subject to a right of way, to build or project structures over the way, have all been decided upon the same general principles. The difference in the results arises from the application of these principles to a difference in the grants by which the way is created, and in the other circumstances of the cases. These general principles are, that a man who owns land subject to an easement has the right to use his land in any way which is not inconsistent with the easement, but has no right to use it in a way which is inconsistent with the easement; and that the extent of the easement claimed must be determined by the true construction of the grant or reservation by which it is created, aided by any circumstances surrounding the estate and the parties [93] which have a legitimate tendency to show the intention of the parties. In the leading case of Atkins v. Bordman, 2 Met. 457, it was held that a passageway about five feet in width, running from Washington Street to rear land owned by the plaintiff, might be built over by the owner of the front land. The court held that, by the true construction of the grant under which the plaintiff claimed, he acquired merely the right of “a suitable and convenient footway to and from the grantor’s dwelling-house, of suitable height and dimensions to carry in and out furniture, provisions, and necessaries for family use, and to use for that purpose wheelbarrows, hand-sleds, and such small vehicles as are commonly used for that purpose in passing to and from the street to a dwelling in the rear, through a foot passage, in a closely built and thickly settled town.” 2 Met. 468. It was therefore adjudged that the owner of the fee might build over the way in a manner which did not render it unfit for these purposes. This decision was followed in Gerrish v. Shattuck, 132 Mass. 235, in which the reservation to the plaintiff was of “ a passageway four feet wide in, through, and over said premises from said Prescott Street to my tenement on the westerly side thereof.” It was held that this reserved a footway for passing and repassing, with such incidental rights as are necessary to its enjoyment ; and that the owner of the servient premises might build over it in such manner as not to interfere with these purposes. In the case of Schwoerer v. Boylston Market Association, 99 Mass. 285, it was clear that the passageway could not be built over, because the grant to the plaintiff expressly provided that it should not be “ subject to have any fence or building erected thereon,” and because the other parts of the deed and the facts of the case show that the intention of the parties was that it should be in the nature of an open court or street. In Brooks v. Reynolds, 106 Mass. 31, the passageway was expressly declared to be “ for light and air; ” and it was held that it could not be covered in whole or in part. The cases of Salisbury v. Andrews, 128 Mass. 336, and Attorney General v. Williams, 140 Mass. 329, were decided upon the ground that the terms of the grants and the surrounding circumstances showed that the purpose was that the passageways in question [94] should be kept open and unobstructed, substantially as streets or courts, not only for the purpose of passing and repassing, but also for purposes such as streets are ordinarily used for, — for light, air, and prospect. The rights of the parties in this suit, therefore, depend upon the construction of the grant to the plaintiff’s grantors in 1832. It is a grant of “ a right and privilege in common with me, my heirs and assigns, in a five feet passageway, leading from the northeasterly corner of said land to said Belknap Street.” In the same breath, the grantor reserves to himself “ the right and privilege of using as a passageway in common with said grantees, their heirs and assigns, a strip of land five feet wide across the northerly end of said granted premises, the said passageway to be maintained and supported at the common expense of the several abutters.” The passageway reserved was a continuation of the passageway named in the grant to the plaintiff’s grantors. The effect of the two clauses was to provide for a passageway running from Belknap Street (now Joy Street) in a westerly direction for a distance of ninety-six feet across the rear of the two lots now owned by the plaintiff and the defendant. It is only five feet in width, and has no outlet at the westerly end. It is too narrow to be used for horses and carriages, and clearly was not designed for such use. It is not of the character of a street or court. The purpose seems to have been to provide a narrow footway leading to the rear of the defendant’s and plaintiff’s lots, and of the lot next westerly of the plaintiff’s, and of the lot on the northerly side of the way, designed for passing and repassing on foot and for carrying, in small vehicles, articles necessary for family' use, and generally to be used as such ways are ordinarily used in a large city. The grants to the plaintiff and to the other abutters contain no provision that the way is to be kept open to the sky for light, or air, or prospect. We cannot distinguish this case from the two cases above cited of Atkins v. Bordman and Gerrish v. Shattuck ; and are therefore of opinion that the plaintiff has not shown a right to have the passageway kept open and unobstructed from the ground upwards for its full width of five feet. The provisions in subsequent deeds by Thorndike of other lots abutting on the passageway do not lead us to any other [95] conclusion; and we are not able to see bow the fact that Perkins opened windows, overlooking the way, in his house on the lot north of it, has any material bearing on the case. He could not thereby acquire an easement of light and air. The defendant and his predecessors in title had no right to prevent his opening windows, and their silence cannot justly lead to the inference that the passageway was laid out for the purposes,of light and air, and thus enlarge the grant to the plaintiff. The question we have discussed is the only one argued by counsel, and we see no reason for disturbing the decree entered by the justice who heard the case. Decree affirmed.