Codman v. Evans , 83 Mass. 443 ( 1861 )

Chapman, J.

Where land is granted bounding upon a way, public or private, the question whether it extends to the side line or the centre line of the way is a question of construction in each particular case, and depends upon the intent of the parties as expressed in the descriptive part of the deed, explained and illustrated by all the other parts of the conveyance, and by the localities to which it applies. This position is sustained by the authorities cited on the plaintiffs’ brief, and is stated substantially in the language of Shaw, C. J. in Webber v. Eastern Railroad, 2 Met. 151. Its application to the deed of Amory to Apthorp is to determine this case.

The lot in question is conveyed with other land, and is described as being “ called number five.” It is bounded “ northerly on lot number four this day conveyed by said Amory to John Bellowes.” As the lots on the plan hereafter mentioned are not numbered, we learn from this description which lot the parties called “ number five,” there being no dispute as to which lot was conveyed to Bellowes. The measurements of the lot are next given in feet and inches, and they correspond with the lines as marked on the plan. This fact has some tendency to show that those lines are the boundaries of the lot; but distances are so often found to be erroneously stated, that they are not relied upon with much confidence.

The description continues, “ southerly on a certain nine feet passage way, or open piece of land, lying between the land herein conveyed and the house of said Amory, occupied by the widow .Leverett,” This language excludes the passage way from the lot granted; for if the way lies between the lot conveyed and the house mentioned, the lot is external to the way. It then proceeds, “ the said southerly line making an elbow at the distance of forty six feet from Common Street, said lot there being twenty eight feet three inches broad.” The descriptian of the elbow corresponds with the south line marked on the plan and with nothing else. We must reject it if we ex-, tend the lot to the middle of the passage way.

The grantor covenants that Apthorp, his heirs and assigns, “ shall have the use and benefit of one other passage way (referring to this one), of nine feet in width, communicating with the one aforementioned and Common Street, and situate as aforesaid between the land herein conveyed and house occupied by the widow Leverett, which last-mentioned passage way is to be only of the width of nine feet, and it is understood that said Amory, his heirs and assigns or tenants of his other estates, shall also have equal use and improvement of both the aforegoing passage ways.” This grant of “ the use and benefit ” of a passage way imports only the grant of an easement. It has an equal application to all the parts of the nine feet in width. The words which follow restrain the grant from being exclusive, and declare that it is to be in common with the grantor, his tenants, heirs and assigns. They do not import a reservation of a right of way over land of which the fee is granted.

The description ends as follows : “ The above house and passage ways are hereby described according to a plan of the same subscribed by the several grantees of said lots, to which reference is had.” Where there is nothing to indicate the contrary, the external lines of a lot, as marked on a plan referred to, are presumed to be the boundaries of the lot. In this deed there is nothing to indicate that the lot extends beyond the lines; but the clauses above referred to, which are all that are material in deciding the question, indicate quite plainly that the fee was not granted in any part of the passage way.

The grantees of an easement are limited to the use granted. Atkins v. Bordman, 2 Met. 457. They are liable to an action for any unauthorized use. Appleton v. Fullerton, 1 Gray, 186. The erection of a bay-window over the soil is a tort for which an action lies, though the damage may be merely nominal, for it invades the plaintiffs’ right.

Judgment for the plaintiffs; damages one dollar, by agreement