Kendall v. Hardy

Knowlton, C. J. The plaintiff is the owner of the equity of redemption in an apartment hotel on the southerly side of Commonwealth Avenue called The Colonial, and the defendant is the owner of the Hotel Puritan on the same avenue, a short distance west of the plaintiff’s property. Both of these houses extend back from Commonwealth Avenue southward to a passageway sixteen feet'wide, between Commonwealth Avenue and Newbury Street, which starts from a dead end at its eastern extremity and runs westward, parallel with these two streets, and then turns at a right angle to the south and enters Newbury Street. The land through which the passageway runs belonged to Henry M. Whitney and others, trustees. Their deed to Farwell, under which the plaintiff obtained her title, bounded the premises southerly “on a passageway sixteen feet wide which leads to Newbury Street as shown on the plan hereinafter mentioned and which is always to be kept open its full width for the benefit of the abutters thereon, for the purposes of light, way, drainage and the like,” etc. The deeds from those grantors, under which the defendant claims title, bound the lots on the passageway, and refer to it in substantially the same way. The deeds to all the other abutters on that part of the passageway which runs parallel with Commonwealth Avenue and Newbury Street refer to the passageway in similar, although not identical terms. There is no doubt that the single justice rightly ruled that the plaintiff, by her deed, acquired an easement in that part of the passageway which is in the rear of the defendant’s building, and the right to have it kept open. The defendant, in the erection of the Hotel Puritan in 1908 and 1909, constructed four horizontal rows of bay windows, the lowest of which start at a height of from eighteen to twenty-one feet above the surface of the passageway, and all of which project about three feet beyond the line of the passageway. The maintenance of the windows there is a technical invasion of the plaintiff’s right, and this bill is brought to obtain a mandatory injunction which will compel the defendant to remove them. The defendant has constructed bins or vaults under the passageway, extending seven feet and four and one half inches beyond the line of it, which he uses for the storage of coal and other [26] articles. Against the maintenance of these the plaintiff in like manner asks for an injunction. -The first and most important question is whether, under the circumstances, the plaintiff is entitled to the remedy that she seeks. She was not the owner of the property when these windows were constructed. George Wheatland was then the owner of it, subject to two mortgages to secure amounts which nearly equalled its value. He was also the owner of the larger one of these mortgages. She did not obtain her title until a considerable time after the windows had been constructed. While it is agreed that previously she had a moral right and interest in the property, we understand that she had no right that was enforceable or recognizable in law. The defendant procured from some of the abutters on the passageway an agreement in writing that he might erect and maintain the windows on the building, and all the abutters except the plaintiff have joined in the agreement, without the payment of any consideration. He went to Mr. Wheatland, who was the only person except the other mortgagee that had legal or enforceable rights in the property, and Mr. Wheatland’s testimony in regard to the conversation is as follows: “ I told him I was not interested in it and said I would not bring any suit. I did not want to do that sort of thing. I should not bring suit against a man when there was no reason. I did not think it proper for me.” The defendant testified that he told Mr. Wheatland “ what Mr. Kendall proposed to do, and . . . Mr. Wheatland said that he did not think Mr. Kendall had any standing in the matter at all, that he had — only he had a verbal agreement to redeem this, and there was due him then about $135,000, and he did not believe Kendall or anybody else would redeem the property at that figure, and asked me if I did. . . . He did not wish to take any action which would seem hostile to Kendall, but that as far as — Kendall could not do anything until he had title to the property, . . . and in the meantime I need not worry, . . . and that, so far as he was concerned, he would have no part whatever in any such action as Mr. Kendall was making.” This conversation was after the work had been begun and before it was finished. Kendall was the plaintiff’s husband and agent. The nearest bay window on the defendant’s building is about [27] one hundred and twenty feet from The Colonial, while on the building directly west of The Colonial, between that and the Hotel Puritan, there are bay windows projecting out over the passageway which have been there for ten or twelve years, ] and, so far as appears, without objection from anybody. The nearer of these bay windows is within about fifteen feet of The Colonial, and the farther within about thirty feet, and they are so located that from no part of the plaintiff’s house can the bay windows of the defendant’s house be seen, even by leaning out of a window. The light, which is one of the purposes for which the passageway was to be kept open, was for the benefit of the houses along the way. It is manifest that the defendant’s bay windows do not affect the light of the plaintiff’s house. So far as the light was for the benefit of persons travelling on the passageway, the bay windows do not noticeably diminish it. The justice found that the plaintiff’s estate has not been damaged by the putting out of the bay windows. All of the other abutters on the way have agreed to the maintenance of them. The plaintiff complains of nothing but a technical invasion of her legal rights, which causes her no damage. This too, when at the time of the construction of the windows she had no right to the property that could be enforced, and when the owner at that time, without attempting to deprive her of her moral right, indicated his personal willingness, as owner, that the windows should be maintained there. The question is whether, under these circumstances, equity requires that the defendant should remove the windows at a large expense and to the great damage of his property. When the legal owner of the property gave him an assurance that he should not object to the windows personally, and told him that the plaintiff was not likely ever to acquire any legal right to the property, is the fact that, before the windows were completed, he understood that the plaintiff had a moral right to redeem, with no right of which the law takes cognizance, and with no power to give him any rights, sufficient to charge him with the commission of a great wrong, such as to subject him to the penalty of cutting off his windows at great loss, when no one could be benefited by the removal of them ? Under the facts of this case we are of opinion that equity does [28] not require the enforcement of the plaintiff’s technical right by an order for an injunction. Her legal right remains, and she is entitled to nominal damages. A majority of the court are inclined to apply the general principle under which the plaintiff has been left to his remedy in damages in many cases. See Brande v. Grace, 154 Mass. 210; Lynch v. Union Institution for Savings, 159 Mass. 306; Harrington v. McCarthy, 169 Mass. 492; Levi v. Worcester Consolidated Street Railway, 193 Mass. 116; Washburn v. Miller, 117 Mass. 376; Isenberg v. East India House Estate Co. 3 De G., J. & S. 263; Durell v. Pritchard, L. R. 1 Ch. 244; Hall v. Rood, 40 Mich. 46 ; Nicodemus v. Nicodemus, 41 Md. 529. The case of Stewart v. Finkelstone, 206 Mass. 28, 38, was very different from the present one in its facts. The single justice held that the construction by the defendant of the underground bins or vaults, for use for the storage of coal and other articles, was not inconsistent with the full use and enjoyment of her easement by the plaintiff, and did not exceed the defendant’s rights as owner. The easement granted was the right to have the passageway kept open. This includes the entire' space above the ground. The additional words, “ for the purposes of light, way, drainage, and the like,” are explanatory of the intended use of the passageway, but they create no additional right unless by implication. Drainage is the only one of these words that by any interpretation can relate to rights underground. Its meaning can be satisfied by referring it to drainage upon the surface. When we consider it in reference to the plaintiff’s construction of drains beneath the surface, it is important to remember that, before the first of these deeds referring to the passageway was made, the city had laid out and constructed a public sewer through the whole length of the passageway. It is to be assumed that this had been done under proper proceedings which gave the city and the public permanent rights there. It is found that all the buildings on the passageway drain into this sewer. If underground drainage was included in the reference in the deeds, it is not to be supposed that the parties contemplated anything more than drainage into and through the public sewer. We are of opinion that these deeds did not give the individual abutters a right to have the land beneath the surface of the [29] passageway remain unused, so that the construction of a coal bin by an owner under it would subject him to a suit by an abutter whose property was not damaged by it. The rule as to ownership along highways where a public easement is taken, which gives rights for all kinds of passage and transportation beneath the surface as well as above it, permits the individual proprietor to use the property in any reasonable way, so long as he does not interfere with the exercise by the public of its paramount right. Sears v. Crocker, 184 Mass. 586. Whenever the public authorities find it necessary to use it, the individual owner must give way. Without determining whether the reference to drainage in these deeds gives the grantees any rights in the passageway beyond the use of it for surface drainage, and as abutters entitled to the benefit of the public sewer, we are of opinion that the findings and rulings of the judge on this point were correct. It follows that the bill must be dismissed as to that part of it which relates to the subterranean construction, but will be retained for the establishment of the plaintiff’s right as to the bay windows, and a decree awarding nominal damages and costs, unless the plaintiff elects to have it dismissed altogether. So ordered.