Brooks v. Reynolds , 106 Mass. 31 ( 1870 )

Gray, 3.

It is now well settled that by the common law of Massachusetts a deed of land passes no right of light and air over other lands, without express words. Rogers v. Sawin, 10 Gray 376. Carrig v. Dee, 14 Gray, 583. Richardson v. Pond, 15 Gray, 387. The extent of the plaintiff’s rights therefore depends upon the terms of the deed from the New Cornhill Corporation to Hurd, under which the plaintiff claims title ; and we are all of opinion that by that deed was granted the right to the open and unobstructed passage of light and air from the ground upwards and throughout the length of the passageway, five feet wide in the clear at the end next the building thereby conveyed, and two feet and eight inches wide at the other end of the passageway; and that the subsequent deed from the corporation to Hurd of a strip of land four inches deep next his building did not extinguish or impair that right over' the rest of the passageway. The ruling of the learned judge who presided at the trial in the superior court, that upon the construction of the conveyances the plaintiff took only the common law right of air and light, was therefore erroneous; and as the judgment for the defendants was based upon that ruling only, without passing upon the other grounds of defence, the Exceptions must be sustained.