Rowell v. Doggett

In 1853, A., the owner of land abutting on H. Street, conveyed the rear portion of it to P. by a deed giving to the grantee, his heirs and assigns, “ the right to a passage through to H. Street eighteen feet wide,” and describing one of the side lines thereof. The deed also provided that P. “ is not to injure or destroy any fruit trees now in a bearing state.” At the time of this conveyance, there was no other access to the land from a street; but in 1857 P. acquired by purchase a right of way from the land to another street; and in the same year he built a fence on the boundary line between his land and that of his grantor, which enclosed the eighteen-foot strip, and put a gate four feet wide in the fence at one end of the strip. Eor some years before the grant, at the time of the grant, and until 1883, there was a footpath, which entered the eighteen-foot strip at the place where the gate was put in 1857, and then wound round among the fruit trees to the street. During this time the eighteen-foot strip was impracticable for use as a carriage-way, and could not be made practicable without injuring fruit trees which were in a bearing state in 1853, nor without much filling in and grading. In 1857, P., while he held the land, stated to a grantee of A. that he, P., had a footway through the land to H. Street, and that A.’s grantee might use the land to the footway as he saw fit. In 1883, a grantee of P., after P.’s death, attempted to make the eighteen-foot strip available for a carriageway. Held, on a bill in equity by the grantee of A. to restrain him from so doing, that the evidence of the facts above stated was admissible to interpret the grant to P.; that the declarations of P. were admissible; and that the plaintiff was entitled to a decree.

Bill in equity, filed July 23 1883, to restrain the defendant from doing certain acts and making certain changes on the land of the plaintiff in Clinton, and constructing a carriage road over it, within defined limits, over which the defendant claimed a right of way. The case was referred to a master, whose report was in substance as follows : In 1853, one T. W. Lewis owned'a parcel of land in Clinton, lying easterly of High Street, and abutting thereon. In that year he conveyed that part of the land lying farthest from the street to J ames Patterson, by a deed containing the following: “ Said J. Patterson, his heirs and assigns, shall forever have the right to a passage through to High Street eighteen feet wide, and bounded on the south by the line between said Lewis and A. Knight, but is not to injure or destroy any fruit trees now in a bearing state. Said J. Patterson is to build and keep in repair the fence between him and said Lewis.” At the time of this conveyance, there was no means of access from a public street to the land conveyed except over the passageway granted. In 1857, Patterson, by the purchase of another piece of land, acquired a right to pass to Walnut Street, a public street lying easterly of the lots in question. In 1857, the plaintiff acquired title, through mesne conveyances, of the remaining land of Lewis, subject to the right granted to Patterson. Patterson died in 1865; and in 1879 the executor of his will conveyed to the defendant the lot conveyed by Lewis to Patterson, together with all the land lying easterly of it to Walnut Street. Patterson in the spring of 1857 built a fence extending the whole length of the division line between the lots now owned respectively by the plaintiff and defendant, with a gate not over four feet in width at the southerly end of the fence, next to the adjoining land of A. Knight. This fence, which extended across the whole width of the passageway, was maintained in substantially the same position continuously until July, 1888. At the time of building this fence, and for many’ years previously, as far back as 1849 or 1850, there had been a footpath from the lot now owned by the defendant to High Street, and the gate was placed at the southerly end of the fence built by Patterson, so as to accommodate this footpath. The path entered the plaintiff’s lot near the southerly side of the eighteen-foot passageway, passed south of two apple trees which stood within about three feet of the southerly side of the plaintiff’s lot and near the gate, and then turned towards the northerly side of the eighteen-foot passageway, and so on to High Street. The plaintiff’s lot was originally quite rough and ledgy, with a steep descent towards High Street; and especially at a point about one third of the distance down the lot, and just above the plaintiff’s house, where a ledge cropped out from north to south, there was a descent of about five feet in a distance of twelve feet. The evidence proved to the satisfaction of the master that it would be impossible to construct a practicable way for vehicles over the passageway, without a considerable cut or fill, or both, at this point at least, in the descent. Five apple trees are now standing on the lot which were standing there when the grant of the passageway was made to Patterson, and one which was then standing was cut down by the plaintiff about twelve years ago. Of these six trees all but the two already mentioned as near the gate in the fence were proved to be in bearing condition at the time of the said grant; but in reference to those two the evidence on this point was uncertain. Two of the six trees were situated just above or east of the ledge; one of the two three feet north of the southerly line of the passageway, and the other directly opposite to it, and close to and either just north or just south of the northern line of said passageway. The footpath appeared to have turned northerly after passing the two trees near the gate, to avoid the southerly of .these trees near the ledge, the branches of which spread widely and near the ground ; and, before the northerly tree was cut down by the plaintiff, the branches of the two trees intertwined across the passageway so that it was difficult for a person to pass between them in the footpath with an umbrella spread open, and it would have been impossible to pass through with any vehicle without cutting away the branches of the trees. The house of the plaintiff stands near the westerly end of his lot with its front nearly bounding on the northerly side of the passageway. About twelve years ago the plaintiff built a barn on his lot easterly from and adjoining his house, and extending about to the ledge mentioned; and, in order to get access to his barn, he excavated and graded somewhat the land easterly and southerly of his house, so as to make over the passageway and his other land a practicable road to the barn. Before this, it had been impossible to pass beyond the house easterly with vehicles in the passageway. After making the excavation, the plaintiff built a retaining wall from the easterly side of his barn southerly, along the westerly side of said ledge, and extending a few feet within the eighteen-foot passageway. At the termination of this wall he erected a flight of wooden steps where the footpath reached the ledge for the accommodation of those using the passageway; and at the same time he cut down the apple tree mentioned, which stood near this wall. The plaintiff used the passageway for planting grass and vines, excepting the part occupied by the footpath, from the time of his purchase of the land to August, 1883; and for over twenty years before the last date he maintained clothes-posts within the limits of the passageway, but about two feet northerly of the foot-path, and used them for hanging out clothes to dry. The plaintiff was permitted to prove, and did prove, against the objection of the defendant to the admission of the testimony, that Patterson, soon after the plaintiff bought his lot, told him that he, Patterson, had a footway through the land to High Street, and that the plaintiff might use, occupy, and plant the land as he saw fit, up to the footpath; and that he told several other persons that he had a footpath through the plaintiff’s land to go to the post-office, market, &c. The plaintiff was also permitted to prove, and did prove, against the objection of the defendant, that about July 2, 1883, the defendant went on to the plaintiff’s land with his agents; cut down and took away so much of the fence between the plaintiff’s and defendant’s lands as extended across the eighteen-foot passageway; took away the steps; filled and graded westerly from the ledge for a distance of about twelve feet, with material which .he brought from his own land, to a depth next the ledge of about four feet and nine tenths; cut off a limb from the apple tree next above the ledge which extended across a portion of the passageway, and which was about ten inches in diameter near the trunk of the tree where it was cut off; took up and removed the clothes-posts; and turned the retaining wall round to a right angle with its former position, so as to support the material brought on for the purpose of filling and grading the passageway west of the ledge; and that the effect of this grading was to turn back the surface water, which before had flowed away from the barn, towards and upon the house and barn of the plaintiff. These acts were done by the defendant for the purpose of making the passageway passable for vehicles from his lot to High Street, and were necessary for that purpose. The master found, upon these facts, that the clause in the deed to Patterson, according to its true construction and intent, granted only a footpath within the eighteen-foot limits from his land to High Street; and that, if a passageway for vehicles was granted by said clause in his deed, the evidence of non-user and the accompanying acts and words of Patterson showed an abandonment or surrender of tbe right to use the passageway for that purpose. At the request of the parties, the master also reported the following facts agreed upon by them: High Street in 1853 was, and still is, a business street in Clinton, whereon the principal shops and stores are located. Walnut Street in 1853 was, and still is, occupied by private residences and public buildings, and has convenient and direct connection with High Street. A tenement house was built by the defendant on the lot conveyed by Lewis to Patterson, in 1882 and 1883. The case was then heard, by a single justice of this court, on the report of the master, and a decree was entered that the defendant be perpetually restrained from using the right of way as a drive or carriage way, or from making any changes on the surface thereof for such use. The defendant appealed to the full court.