Siegel v. Starzyk

Braley, J.

It appears from the master’s report, where the title of the parties is fully stated, that the defendant is the owner of a parcel of land in Chicopee on the northwesterly corner of Center and Exchange streets on which is a building referred to as the Cabot Hall block or building, and a parcel designated as *296 the ICendall property lies westerly on Exchange Street, and westerly of the Kendall parcel comes the plaintiffs’ land measuring about forty feet on the street with a depth of about one hundred feet. The defendant’s title is derived under a deed to one Woodward by the Ames Manufacturing Company, dated April 1, 1847, which recites "... that the passage of twenty-five feet in width between the back side of said building and said Wait’s line shall be kept open and unencumbered with buildings forever.” It is found that the building referred to is the Cabot Hall block, and the Wait line, is the line dividing the defendant’s land from the ICendall property. By mesne conveyance of Woodward to Jerome Wells, and the subsequent intestacy of Wells, Georgiana L. Doten, his only heir at law, became seised of the land now owned by the defendant, and she with Joseph E. Patrick, who owned the land now held by the plaintiffs, and Kendall, who owned the land between, executed and delivered on December 5, 1881, a deed wherein Patrick released to Kendall his easement of way over Kendall’s land, and Doten granted to Patrick, his heirs and assigns, “the right to use the passageway upon the land in the rear of ‘Cabot Hall’ building ... for the purposes incident to the use and enjoyment of the said block and lands of said Patrick . . . and said Kendall . . . grants said Patrick a right of way ten feet wide in the rear of the new block he is now building on the Northerly side of Exchange Street . . . connecting the land of said Patrick . . . with the way heretofore granted him by Georgiana L. Doten, said right of way to be used ... for all purposes incident to the use and enjoyment of said lands and block . . . said Doten is to be permitted to extend a stairway eight feet into the passageway. The building next to Patrick not to be erected higher than one story where the right of way now exists in said Patrick.” And the deed of Doten to the defendant provides “that the passageway of twenty-five feet in width between the back side of said building and said Wait’s line shall be kept open and unencumbered with buildings forever.” The master finds that the "ten foot way and the twenty-five foot way intersect at an angle of about ninety degrees,” and that title to the open space of about twenty-five feet between the buildings is in the defendant, who in July, 1919, closed the way where it entered Exchange Street by a high board fence with a *297 gate, and began an extensive remodeling of the Cabot Hall block easterly into and across the passageway.

The defendant’s only substantial contention is, that, although the plaintiffs are entitled to damages as assessed by the judge, injunctive relief should be denied. The master, however, states that the passageway in the rear of "Cabot Hall building” is "the passageway of twenty-five feet in width between the back side of said building” and the line dividing the defendant’s land from the Kendall property. The way is fixed and definite. It is bounded easterly and westerly by the brick walls of the buildings known as the Cabot Hall block and the Kendall property, and therefore the plaintiffs’ easement is commensurate with the entire width of twenty-five feet. Salisbury v. Andrews, 19 Pick. 250 . Welch v. Wilcox, 101 Mass. 162 . Tucker v. Howard, 122 Mass. 529 . Nash v. New England Mutual Life Ins. Co. 127 Mass. 91 .

While the defendant as owner of the fee can excavate below the surface, if thereby he does not interfere with the plaintiffs’ right of passage, Kendall v. Hardy, 208 Mass. 20 , he cannot lawfully erect and maintain the fence and gate, or make excavations in the surface of the way to a depth of six feet for the purpose of putting in the foundation walls of the proposed addition to, or enlargement of the old building, even if the wall in process of construction is about a foot below the surface, and at no point has as yet reached the level of the way.

The plaintiffs on the master’s report having seasonably asserted their rights, should not be compelled to surrender their easement in part at a valuation, because the pecuniary benefit of the defendant may outweigh any disadvantage suffered by them in having the way narrowed to one half of the grant, which even then would be somewhat wider than the connecting way.

We are accordingly of opinion that the final decree limiting the plaintiffs to money damages and to the removal of the gate and fence should be reversed, and a decree with costs is to be entered awarding nominal damages, and directing the restoration of the passageway to its former condition,' and permanently enjoining the defendant from obstructing or interfering with the plaintiffs’ lawful use of the way within the limits described in the bill. Tucker v. Howard, 122 Mass. 529 . Nash v. New England Mutual Life Ins. Co. 127 Mass. 91 . Boland v. St. John’s *298 Schools, 163 Mass. 229 . O’Brien v. Goodrich, 177 Mass. 32 . O’Brien v. Murphy, 189 Mass. 353 . Downey v. H. P. Hood & Sons, 203 Mass. 4 . Curtis Manuf. Co. v. Spencer Wire Co. 203 Mass. 448 . Kershishian v. Johnson, 210 Mass. 135 . Szathmary v. Boston & Albany Railroad, 214 Mass. 42 . Draper v. Varnerin, 220 Mass. 677 . Wellington v. Rawson, 231 Mass. 189 . Congregation Beth Israel v. Heller, 231 Mass. 527 .

The interlocutory* decrees overruling the exceptions to, and confirming the report, and denying the plaintiffs’ motion to recommit are severally affirmed.

Ordered accordingly.