Vinton v. Greene , 158 Mass. 426 ( 1893 )

Holmes, J.

This is a bill in equity, brought to restrain the defendants from changing the grade of a passageway. The defendants appeal from a decree for the plaintiffs, and the case is before us on agreed facts and evidence. The questions are whether the plaintiffs have lost by abandonment a right which otherwise they are admitted to have, and whether the contemplated change would interfere with the plaintiffs’ rights. The facts which are material to our decision are not disputed. The plaintiffs’ title is derived from one who owned both the dominant and servient estates. His deed conveyed the easement in question in the following words: “ the right of use in common with the abutters thereon of a passageway on the southeast boundary as now laid out, about five feet wide, for any and all lawful purposes, with the express understanding that said passageway shall be maintained and supported at the common expense of all the abutters thereon.” The southeast boundary was described in the same deed as “ a line running longitudinally through the centre of the brick wall betwen the premises hereby conveyed and the adjoining estate, about seventy feet.” This was is 1833. The first description of the premises by eyewitnesses is as they were in 1866. At that time there was a dwelling-house on the front of the plaintiffs’ land, with a yard in the rear, and a continuous brick wall on the southeast boundary. The only access to the passageway was by a gate through the wall of the yard.

In 1866, the defendant Greene, having bought the adjoining land, lowered the passageway about three and a half feet, leaving the plaintiffs’ door in the air. Thereupon the plaintiffs built an L, covering their whole yard, and built up the wall solid, and there has been no gate there since. This is relied on as an abandonment. In the same year they opened a coal-hole ten inches by twelve through the wall of their main building on the passageway, but we assume that, if this was wrongful originally, no right to maintain it has been acquired by lapse of time.

The defendants, assuming the state of things in 1866 to have been the same as that in 1833, say that, while a right to pass through the gate may have been granted by implication, the plaintiffs’ predecessors got no right to make any other aperture through the party wall, and had no right of way over the six inches, or whatever it may have been, covered by one half of that wall and belonging to the defendants’ predecessor. This is tacitly assumed as equivalent to the proposition that the only right in the passageway was in connection with the gate, and the conclusion is drawn that when the gate was closed the easement was abandoned.

Admitting the defendants’ assumption as to the facts to be correct, we cannot construe the plaintiffs’ rights so narrowly. Whether under such circumstances they had the right to make reasonable apertures, we need not consider further than to say that cases as to party walls not bounding passageways are not conclusive. But we cannot admit that, if in any way the wall should be removed in whole or in part, it would be wrongful in the plaintiffs to pass from their land to the passageway over any part of the land where the wall had been. At all events, and even if the plaintiffs had no right to enter the passageway except through the gate or at the end, once in the passageway their use of it would be rightful, even if they had passed through the wall in an unauthorized way. See South Metropolitan Cemetery Co. v. Eden, 16 C. B. 42. It follows that, if making the coal-hole was unauthorized, and every use of it is a trespass on the land covered by the party wall, still the plaintiffs have been using the way rightfully ever since they closed the gate. They have done it openly, and in a way known in fact to the dominant owner. Therefore the finding that the passageway has not been abandoned was fully justified, and it is further supported by the evidence of other subsidiary uses made of the way. We may go one step further still. If the use of the coal-hole was not only unlawful itself, but made the use of the passageway in connection with it unlawful, nevertheless such a continuous use of the passage, with the knowledge and against the will of the owner of the fee, was notice to him and to all concerned that the plaintiffs’ claims on the way were not abandoned. See Hayford v. Spokesfield, 100 Mass. 491, and cases cited.

The Wardens and Vestry of St. Paul’s Church, and their tenants, Shepard, Nor well, and Company, seek to better their case by the fact that the latter have built upon a plan which requires the lowering of the passageway. But if the plaintiffs were required to take any notice of acts done by strangers outside the servient land and in no way interfering with the plaintiffs, the coal-hole was notice to these defendants, as well as to the servient owner, that they built at their peril. No question of loches apart from abandonment is open, nor does it appear that there were any.

It is settled that, if the plaintiffs had a right of way, the defendants have not a right to make any change in its grade which will make the way less convenient to any appreciable extent. Killion v. Kelley, 120 Mass. 47, 52. Kelley v. Saltmarsh, 146 Mass. 585. Nute v. Boston Co-operative Building Co. 149 Mass. 465, 471. It is found that the proposed change would interfere with the plaintiffs’ rights, and we are of opinion that the defendants ought not to be allowed to make a compulsory purchase of the right to interfere with them.

Decree for plaintiffs.