Ridgway v. Vose

Metcalf, J.

The court cannot see that the defendant has any ground of exception to the instructions given to the jury. His only right to insert timbers in the plaintiff’s wall is that which is contained in his deed of October 21st 1840, given to the plaintiff’s ancestor. The legal effect of that deed was to reserve to the defendant the privilege of letting the timbers of his shed, as it then stood, into the plaintiff’s wall, and no further use of that wall. And the jury were instructed that the defendant had no right to put into that wall the timbers of a new building different in dimensions, height and uses from the shed that was standing when the deed was given. Under these instructions, the jury have found that the defendant has put into the plaintiff’s wall timbers of a new building which is not substantially like the old shed, and that the plaintiff has thereby sustained actual damage.

A judgment on the verdict will leave undecided a point taken by the plaintiff’s counsel, to wit, that the privilege reserved to the defendant in his deed is personal merely, or, at most, does not extend beyond the existence of the shed as it stood at the date of the deed.

Exceptions overruled.