Boston & Albany Railroad v. Freedman

Carroll, J. This suit in equity, to compel the removal of a fence constructed on Elm Street; Chelsea, in which street the plaintiff claims a right of way, is in this court on the defendant’s appeal from a decree directing him to remove that part of the fence which encroaches on Elm Street. The Boston and Albany Railroad Company is the owner, and the New York Central Railroad Company, the lessee, of land adjacent to Elm Street. The defendant owns the land on the opposite side of the street. The Boston and Albany Railroad Company acquired title in 1908, by deeds in which the land was described as bounded southwesterly by Elm Street, which was shown on the plan referred to in the deeds as forty feet wide. At this time Elm Street was open and used as a street for a portion of the distance where it abutted the land conveyed to the railroad. In 1916 the Boston and Albany Railroad Company took by eminent domain a strip of land twenty feet wide, comprising the northeasterly half of Elm Street. The southwesterly half of the street along the land now owned by the defendant was not included in the location or taking. In 1919 the defendant acquired title to the land on the southwesterly side of Elm Street, taking an assignment from the former owner of his claim against.the railroad company for the taking; and in 1920, for a consideration paid, he released the plaintiffs from all claims for damages arising from the railroad company taking. In 1922 the defendant built a fence projecting from his land into the half of Elm Street not covered by the railroad location. The main contention of the defendant is that the Boston and Albany Railroad Company, by taking one half of the street by eminent domain, lost its right in the remaining twenty foot strip; that the easement in the portion of Elm Street not within the railroad location was extinguished by the taking. When the railroad company took the northeasterly half of Elm Street by eminent domain, the easement in the portion of the street not so taken, remained. The right to the use of Elm Street forty feet wide was appurtenant to the [4] whole parcel of land conveyed to the railroad company in 1908. The right was not appurtenant merely to that portion of the land abutting or adjoining the street. The easement attached to the whole tract. Mahon v. Tully, 245 Mass. 571, 576. The easement was not lost by taking a portion of Elm Street. The portion not included in the taking was subject to the easement, and this easement was appurtenant to the plaintiff’s land. As stated in Downey v. H. P. Hood & Sons, 203 Mass. 4, 10, 11, "Nor was the easement as thus defined extinguished by the taking of a portion of the way in width at the point where it came within the limits prescribed by the decree in the proceedings for the changes in the location of the railroad. Its extinguishment would have followed as to the part taken, if the entire space had been appropriated.” The plaintiffs had the right to use the remaining part of Elm Street. They were deprived of their right of way therein by the fence erected by the defendant, and its removal was ordered properly. We find nothing inconsistent with this decision in Weeks v. Grace, 194 Mass. 296, 299, and Emery v. Boston Terminal Co. 178 Mass. 172, cited on the defendant’s brief. The plaintiffs are not estopped to claim the easement in the street because of the fact that in 1923 the New York Central Railroad Company gave a lease of its right in a part of Elm Street to the Kay Manufacturing Company and to Israel Ribock, who are owners of the land on the street and have built platforms and side tracks within the street in front of their land. As we understand the finding of the judge, the portion of Elm Street within which the railroad company gave a lease of its right, is northwesterly of the defendant’s land. The defendant built the fence in 1922. The lease was not given until 1923. There could be no estoppel by this act in giving the lease subsequent to the defendant’s encroachment on the way. Boston & Albany Railroad v. Reardon, 226 Mass. 286, 291. Nelson v. Wentworth, 243 Mass. 377, 379. A. W. Dodd & Co. v. Tarr, 251 Mass. 189. The plaintiffs were entitled to an injunction requiring the defendant to remove the fence. Decree affirmed with costs.