Parker v. Smith

If land be conveyed as bounded on a way upon one side, this is not merely a description, but an implied covenant that there is such a way; and fills, whether the and be above or below high-water mark. But if there he a way in fact existing, which does not extend through the whole line of the land granted, the parties shall be supposed to have had reference to such existing way, as a boundary, as far as it extends, and not to have contemplated a way coextensive with the land.

This was an action of trespass upon the case for obstructing a way which the plaintiffs declared they had, appurtenant to their store, and land under and adjoining the same in New Bedford. The obstruction complained of was occasioned by a building or store, which the defendants had erected upon the ground over which the plaintiffs say their way runs, so near that they could not open their doors or windows. Trial was had upon the general issue before Putnam, J., at the sittings at Taunton, after October term, 1819.—The plaintiffs built their store in 1816, and the defendants theirs in 1817. On the 25th of October, 1769, one Joseph Russell conveyed the land, on which the store of the plaintiffs stands, to one Benjamin Taler, from whom the plaintiffs derive their title through several mesne conveyances, the land conveyed being thus described; “ beginning at a stake in the corner of two ways or streets, and from said stake east about fourteen rods and three quarters, to high-water mark, and the same course into the river; thence, beginning at the said stake, and from thence north eight rods to a stake, and from thence east to the river or salt water ; together with a privilege in all the ways or streets that are or shall be laid out in the new settlement, to be used in common with the other owners of the lots in said new settlement.—The beforesaid lot of land bounds southward and westward on ways or streets left for the use of the lots in said settlement, east on the river or salt water, north on my own land.” The plaintiffs proved that they built their store on the land above described, and that they were seised and possessed of the same at the time when the defendants erected their store on the [ *414 ] south side of the plaintiffs, on the * ground which the plaintiffs alleged to have been left as a way or street. The plaintiffs also gave evidence tending to prove that their store was placed above the low-water mark; and the defendants gave evidence tending to prove that it was placed below low-water mark, and so not within the bounds of the lot originally conveyed by Joseph Russell; all which evidence was left to the jury, and they found that the store was placed above the low-water mark. The defendants contended that Russell’s deed to Taber did not contain any grant of a right of way ; and if it did, that it extended to high-water mark only; and that the land to the eastward, between nigh and low-water mark, still belonged to Russell; and that the de fendants, claiming under him, had a right to place their store upon it But the judge was of opinion that the deed from Russell to Taber conveyed the land to low-water mark, that being less than one hundred rods from the upland ; and that the grantor, having bounded the land southwardly and westwardly on ways or streets left for the use of the lots in said settlement, could not himself rightfully obstruct the same; and that his heirs had no better right to do it than the grant- or ; that the deed must be construed as a grant or declaration, at least so far as should relate to the grantor, and those who should claim under him, that the land to the southward and westward of the lot granted, then was, and should be continued, a way for the use of the owners and occupiers of that lot, in common with the owners and occupiers of other lots. And the judge so instructed the jury; observing that Mr. Russell (who, it was admitted, was the owner of all the land where New Bedford, the new settlement above referred to, stands) was probably fully compensated for the land thus left for ways or streets, by the increased value of the lots, which hé sold with the privilege of using the same streets. The judge further instructed the jury, that as the lot extended eastward to the low-water mark, the way must * be intended or construed as extending to low-water [ * 415 ] mark also; and that the clause in the deed of Russell to Taber, “with a privilege of all ways already laid out, or which should be laid out,” &c., might be considered as a covenant, that the grantee and his assigns should have a right in the ways, which the grantor or his heirs might lay out in the new settlement, so far, at least, that he or they should not obstruct the same. The defendants offered in evidence the record of the laying out of Prospect Street by the selectmen of New Bedford in 1769, after the deed from Russell to Taber; and contended that, as that street stopped at high-water mark, it tended to prove that the plaintiffs had not a right of way to the eastward of that street extending to low-water mark. But the judge instructed the jury, that the way laid out by the selectmen did not prejudice the right which the grantees of Russell had prior to such laying out. It was proved that Prospect Street stopped at the bank; but that in 1770 the passage was made convenient to the water, before which time the passage down the bluff was steep and inconvenient, and the tides used to flow up to the foot of the bluff. A verdict being returned for the plaintiffs, a new trial was moved for by the defendants, for the misdirection of the judge.