Warshauer v. Randall , 109 Mass. 586 ( 1872 )

Chapman, C. J.

Richard Blanchard and John W. Blanchard, being tenants in common of a tract of land bounding north on Warren Place, made partition thereof April 6,1824, by giving to each other deeds of quitclaim. Richard took the westerly part, bounding “ easterly on a common passage, of five feet, leading from Warren Place to a vault, twenty-four feet.” John W. took the easterly part, bounding “ westerly twenty-four feet on a common passageway, of five feet, leading from Warren Place to a vault.” It is not denied that these deeds gave to each of them the fee of the land to the centre of the passageway, subject to a common right of passage. The westerly tract has come to the plaintiff, and the easterly tract to the defendant.

Upon the trial of issues framed to the jury, it is found that the plaintiff has now no easement of way over the strip, and that the defendant has not unlawfully obstructed such way.

The testimony of Richard Blanchard, who had been the owner of the premises of the plaintiff from 1824 to 1853, that in 1838 or 1839 there was a passageway; that he had no use for it, and gave it up to Joshua Harlow, and told him if he would give Blanchard a piece of land on Tremont Street, he would give up all right and title to the passageway; and that since that time Blanchard had not claimed it or used it, was properly admitted. It tended to prove that Blanchard, under whom the plaintiff claims, had abandoned the easement, and that the defendant’s grantors had had the adverse possession and exclusive use of the land covered by the easement for more than twenty years.

The verdict implies, when taken in connection with the ruling of the court as to the construction of the deeds, that the plaintiff has lost his right of way over the easterly half of the strip of land. Upon the bill, the issue was pertinent; for the bill alleges that the plaintiff has such right of way, and that the defendant has obstructed it, and its object is to restrain him from obstructing it further.

As to the western half of the strip, it was the fee that waa conveyed to the plaintiff, and therefore he could have no easement in it. The injury done to him, if any, was not a disturbance of an easement, but a disseisin. The finding that he has no easement in the east half defeats his remedy in equity, and leaves him a plain, adequate and complete remedy at law for the disseisin of the west half.

The defendant contends that the finding of the jury ought to be regarded as conclusive against the plaintiff as to his right in fee. But it is a sufficient answer to that suggestion that the jury have found nothing on the subject, nor was the question before them. The fact that there was evidence which went beyond the questions at issue settles nothing.

The plaintiff also suggests that there were several questions that were left unsettled. But the finding that the plaintiff had no easement superseded them, and made them immaterial. All his rights will be fully protected by a writ of entry.

Bill dismissed, with costs, without prejudice to the plaintiff’s right to bring a writ of entry.