Hamilton v. Dennison

Park, C. J. This action was brought to recover damages for obstructing a passway, which the plaintiff claimed the right to use free from all obstructions. The right of way was granted in the year 1834 by a deed conveying certain premises to one Allen, the grant being in these words:—“ With a right or privilege to use the passway on the easterly side of m v house in passing and re-passing from his house to the highway.” The premises conveyed, together with the right of ■ way, came by regular conveyances to the lessor of the plaintiff, and the latter has occupied them as tenant-at-will for the [368] last twenty years, and was so occupying them when this suit was brought. The servient estate came from the grantor of the dominant estate, incumbered with the right of way, by successive conveyances to the defendant and his wife. The court finds that the defendant, in' the year 1885, placed a coal box, eight feet long, and three and a half feet wide and high, in the passway over which the plaintiff claims the right of way. He also suffered a heap of ashes to accumulate in the passway, which was six feet high, and extended several feet into the way. He also put up two sign boards six feet from the ground, that extended twenty inches over the way. Each had conspicuously upon it the words, “All persons forbidden trespassing on these premises.” This warning deterred many persons, having business with the plaintiff, from passing over the way to transact it. These incumbrances, the court finds, obstructed the plaintiff’s use of the. way, and rendered the defendant liable in damages. The defendant claims that the plaintiff, being only a tenant-at-will of the premises, under a parol lease, had not sufficient interest in the way to enable him to maintain this suit. We think this claim is unfounded. The plaintiff was in possession of the premises, and in possession of the way, and this was sufficient to enable him to maintain a, suit against a wrong doer, who disturbed his possession. The plaintiff offered the evidence of a large number of witnesses, whose testimony.was objected to by the defendant, but admitted by the court, tending to show how the way had been used by the owners and occupants of the dominant estate from the origin of the way, which use had, during all the time, been acquiesced in by the owners and occupants of the servient estate until recently, thereby showing the practical construction which the parties interested in both estates had placed upon the terms of the grant. We think the court committed no error in admitting the evidence. [369] We express no opinion whether the words written or printed upon the sign boards constituted an obstruction to the way, as that question is not among the errors assigned. There is no error in the judgment appealed from. . In this opinion the other judges concurred.