McKenney v. McKenney , 216 Mass. 248 ( 1913 )

Braley, J.

The testatrix by her will devised the estate in question in these words: “I give to my son John E. McKenney the corner half of the double house on the corner of Blossom and Crosby Sts. in said Lynn with the land under and appurtenant thereto: the other half of said double house I give to my son Charles McKenney with a right of way to said Charles his heirs and assigns forever from Crosby St. over the land given to my son John herein for all purposes as if the same were a public highway. The line of the center of the partition wall in said double house extended to the westerly line of my estate shall be the division line between the estates herein given to my said sons John and Charles.” The wall runs through the centre from the cellar to the roof; and, no change having occurred in ownership, the tenants of the plaintiff’s half without objection, yet without any legal right, have used as a means of access to Crosby Street other land of the defendant abutting on the westerly side of the estate. But as the defendant objected to any further use of his outside land the plaintiff demanded in writing, that he assign and set out a way in accordance with the terms of the will. He declined to act, and this bill is brought to compel him to make the assignment, and for general relief.

By the plan, the estates are shown to be so situated, that if a way is laid out along the westerly line of the servient estate a partial demolition of the defendant’s house will be necessary, but, if laid out over the unoccupied land on the easterly or front side, the way will be less easy of full access by the plaintiff and the width stipulated by the parties must be restricted, unless the bay window is removed. It is doubtless true, as the defendant urges, that the testatrix never contemplated or intended that any part of the house devised to him should be destroyed in order to provide the way. Very likely she mistakenly assumed, as he contends, that the land in the rear given to her for life by her husband’s will, but now owned in reversion by the defendant, could be impressed with the easement. The entire property, however, was hers to do with as she liked. ’ If her purpose as expressed cannot be fully carried out, yet the will is to be so construed as to give it the fullest effect not inconsistent with the rules of law. Doherty v. O’Hearn, 214 Mass. 290, 293. In unequivocal language she created an easement to which the defendant’s estate is made subordinate. It would be an unwarranted inference that by the phrase “as if the same were a public highway” she meant to say it was to be of the width usually prescribed for public ways; and this wording may be treated as descriptive of the character of the use, and not of the breadth, of the layout.' Tudor Ice Co. v. Cunningham, 8 Allen, 139. The validity of the right is not impaired, although not defined by metes and bounds in the instrument by which it is created, and what is a suitable and convenient way depends upon the conditions of place, and the purposes for which it was intended. Lipsky v. Heller, 199 Mass. 310, 318.

The defendant could have set out a way, and, upon his refusal, the plaintiff could pass over the servient estate in such manner as to cause the least inconvenience to the owner, consistent with the enjoyment of the easement intended by the testatrix. Pratt v. Sanger, 4 Gray, 84, 87, 88. O’Brien v. Goodrich, 177 Mass. 32. Cotting v. Murray, 209 Mass. 133, 139. But where the right is clear, a court of equity, if the parties cannot agree, will determine what is reasonable under the conditions disclosed, and locate the way accordingly. Old Colony Street Railway v. Phillips, 207 Mass. 174, 181.

It is manifest, as we have seen, that, if it is to come into existence, the way must pass either in the rear, or in front of the defendant’s house. If in the rear, the plaintiff suggests it would necessitate the removal of a part of the lower story only,' leaving a covered or arched passageway as in Lipsky v. Heller, 199 Mass. 310. A radical change of this character, even if it may be technically consistent with the right claimed, not only would require a large outlay by the defendant, but would deprive him of the full enjoyment of his portion of the - premises. The way therefore should be adapted to the estate devised, which has suffered no physical change since her death, even if each party will have to yield something of their respective contentions. We are of opinion, that under the circumstances the provisions of the will are satisfied by the location of the way over the unoccupied strip, which will give to the plaintiff the largest unobstructed .passage to Crosby Street permitted by the open area. George v. Cox, 114 Mass. 382. Lipsky v. Heller, 199 Mass. 310. Rowell v. Doggett, 143 Mass. 483.

A decr.ee directing the defendant within a time to be named therein to set out and assign the way within these limits is to be entered, and if he fails to comply a master is to be appointed to lay out the way, and the decree confirming his report can also enjoin the defendant from interfering in any manner with its lawful use.

Ordered accordingly, with costs.