Kesseler v. Bowditch

Crosby, J. The plaintiff is the owner of a parcel of land at the corner of Pleasant and Piedmont streets in Boston. The rear of the lot abuts upon a passageway called Newman Place. The land in the rear of the plaintiff’s lot, including the passageway, is owned by the defendant. The plaintiff derives title to his land under a deed from James Neunan to Joseph Pratt and Andrew McKenney, dated October 8, 1825. This deed, like other deeds given by Neunan to other persons about the same time, contains the following provision: “Also the privilege of putting two or three windows in the north side of each dwelling house which may be built on said premises, provided the same be blinded with reversed blinds.” This clause created an easement of light and air. The present building on the lot conveyed by Neunan to Pratt and McKenney is a brick dwelling house and was built before the year 1835. There are three windows in the rear north wall overlooking the premises of the defendant. None of these windows is in the first story of the building, but all are in the upper stories. The taking by the city of a portion of the original lot for the purpose of widening Piedmont Street did not affect the building thereon or extinguish the easement. Canny v. Andrews, 123 Mass. 155. The provision that the windows “be blinded with reversed blinds” undoubtedly was for the purpose of preventing the blinds to be placed upon the windows from extending over or encroaching upon the passageway. An inspection of the photo [268] graph in evidence shows that this condition has been complied with, and the presiding judge was justified in so finding. It is stated in the agreed facts that “The defendant proposes to build a one story building in the rear and to the north of the premises conveyed by Neunan to Pratt over a part of Newman Place. The defendant does not intend to build in any way so as to block the windows now existing in the rear of the premises, now belonging to the plaintiff and forming a part of the premises conveyed by Neunan to Pratt.” The first question is, What is meant by the words “each dwelling house which may be built on said premises? ” We are of opinion that as to the plaintiff’s lot, which originally was about twenty feet wide and about twenty-nine feet deep, these words, properly construed, mean each successive dwelling house that shall be so built, and that the language used is not to be construed to refer to the total number of dwelling houses which may be built upon the lot. It follows that the easement is not limited to the dwelling house first built, but applies as well to other dwelling houses in point of time afterwards erected. The language of the deed considered in American Unitarian Association v. Minot, 185 Mass. 589, cited by the defendant, is plainly distinguishable from that under consideration in the case at bar. The question remains whether the rights of the parties have become fixed by the placing of the three windows in the north wall of the building above the first story. The present dwelling house, as above stated, was built before the year 1835, and, so far as appears, the windows in the north wall have been maintained in the same place ever since the building was erected, a period of more than eighty years. It is well settled that when an easement is created by deed, but its precise limits and location are not defined, the location and use of the easement by the owner of the dominant estate for many years, acquiesced in by the owner of the servient estate, will be deemed to be that which was intended to be conveyed by the deed. Jennison v. Walker, 11 Gray, 423, 426. Bannon v. Angier, 2 Allen, 128. Dyer v. Sanford, 9 Met. 395, 402. As was said by this court in Cotting v. Murray, 209 Mass. 133, at page 139, “We think that the case comes within the principle that where an indefinite way has been granted and is either at the [269] time or afterwards by the common consent of the grantor and grantee practically located and determined, and as thus located is used and acquiesced in by all parties interested for a long term of years, it will be regarded as the way intended to be granted by the deed.” It is true that the easement of light and air created by the deed under which the plaintiff claims is of a different character than an easement of a right of way, but we see no reason why the same principle should not apply. As the deed given by Neunan did not specify in what places in the north wall the windows might be located, the grantees and those claiming under them could at the outset place such windows wherever they saw fit, acting reasonably. No windows have ever been maintained in the first story so far as appears, but have for more than eighty years been located in the upper stories. The fact that the owners of the servient estate have allowed the windows to remain as originally located, thereby permitting rays of light to extend over the passageway into the windows as so located during this long period of time apparently without objection, is persuasive evidence of acquiescence by the owners of the servient estate in the manner in which the owner’s rights under the easement have been exercised, We think, under these circumstances,. that the rights of the parties; have become settled and established so far as the present dwelling house is concerned, and that the owner cannot change the location of any of the windows, his right to light and air being limited to the windows as they now exist. City National Bank of Salem, v. Van Meter, 14 Dick. 32. Johnson v. Hahne, 16 Dick. 438. Scott v. Pape, 31 Ch. D. 554. Butters v. Dickinson, 29 Ch. D. 155. Tapling v. Jones, 11 H. L. Cas. 290, 307. The plaintiff contends that, as the easement was created by express grant, it cannot be lost by abandonment, and therefore that he has not lost the right to open a window in the wall in the lower story, and that he may close one of the present windows and open another in the first story. The doctrine that an easement created by deed is not extinguished by mere non-user is well established. Parsons v. New York, New Haven, & Hartford Railroad, 216 Mass. 269, 272. Willets v. Langhaar, 212 Mass. 573, 575. The question of abandonment does not arise in the case at bar. Undoubtedly the plaintiff is entitled to the benefit of the ease [270] ment as appurtenant to his estate. The right which originally existed to place a window upon the lower story has not, strictly speaking, been abandoned, but the plaintiff or his predecessors in title have fixed the location of the easement elsewhere, and it cannot now be changed. It is not necessary at this time to determine the question whether, in case of the removal or destruction of the present building and the erection of a new dwelling house, windows placed in the north wall must be in the same location as in the present building or may be put elsewhere. Decree reversed; bill dismissed with costs.