Bornstein v. Doherty

Khowltob, C. J. This is a bill to enjoin the defendants from the maintenance of a building upon a passageway, and from interference with the plaintiff’s right of way, and with his right to the enjoyment of light and air, in the occupation of his adjacent property. The estates of the two parties formerly belonged to one Rust, and after his death they descended to his' two children, Daniel S. Dickerman and Caroline Bibber, who held them as tenants in common. By a decree of the Probate Court, bearing date April 28, 1884, founded upon a report of commissioners duly appointed by the court to make partition of the property between these two' persons, which report was assented to in writing by them, the estate was divided, and the two parts set off to the brother and sister in severalty, and the partition was confirmed. After stating the appraisal of the property, the report proceeded as follows: “ 1: To the said tenant in common, Daniel S. Dickerman, we have set off and assigned and do hereby set off and assign, as and for his one half thereof, the following portion of said real estate, to wit: A certain parcel of land with the buildings thereon, [describing it] . . . together with the use of a pas [283] sageway, as appurtenant to said premises now existing in the rear of the estate hereinafter set off to the said Bibber, and running from these premises westerly to Endieott street; and we do hereby further set off and assign unto the said Dicker-man an easement for air and light in the open space in the rear of the easterly house on said premises set off to said Carrie Bibber, to be appurtenant to the premises of the said Dicker-man, which space is to remain free and unobstructed for the purposes of said easement. . . . “ 2. To Carrie, also called Caroline Bibber, the other of said tenants in common, we have set off as, and do hereby set off and assign as and for her one half thereof, the portion of said real estate bounded and described as follows [describing it], . . . reserving to the said Dickerman the use of a passageway as appurtenant to his said estate now existing in the rear of these premises and running westerly to Endieott Street; also the easement of air and light in the open space in the rear of the most easterly house on these premises, which space is to remain free and unobstructed for the purposes of said easement.” The first contention of the defendants is that the right of way and the easement of light and air were only for the life of Dickerman, and that they did not pass with the estate to the plaintiff, who by mesne conveyances has become the owner of the portion of which the easements are a part. The defendants now own the part set off to Caroline Bibber. There is no foundation for this contention. ' From the earliest times it has been a principle of law that, in judicial proceedings for the partition of land between tenants in common, the mere assignment of portions of the property, in severalty, carries to each tenant the same estate in the premises set off to him that he had as a tenant in common of the whole property, and it is unnecessary to use the word “ heirs ” if the tenancy in common is in fee simple. Wash. Beal Prop. (6th ed.) § 152. This is as true of easements and appurtenances which are annexed to one part of the estate and taken out of another part of the estate as it is of a parcel of land itself. There is no sound principle upon which a distinction can be made between these different interests in real estate. There is no doubt of the jurisdiction of the court, in such [284] proceedings, to annex reasonable easements to one part of the land and impose reasonable servitudes upon another part, for the benefit of the several owners, in the use of their respective shares of the property. Mount Hope Iron Co. v. Dearden, 140 Mass. 430. Hager v. Wiswall, 10 Pick. 152. Buck v. Wolcott, 15 Gray, 502. The defendants also contend that the plaintiff has lost his right of way by abandonment, by reason of his bricking up of a cellar door through the wall. The reported facts well justified the finding of the judge that this was not an abandonment of the plaintiff’s right, and that the right remained as it was originally created. Hayford v. Spokesfield, 100 Mass. 491. Vinton v. Greene, 158 Mass. 426. Decree affirmed.