Brownell v. Dyer

4 F. Cas. 449, 5 Mason C.C. 227

Opinion

BY THE COURT. The true intent of the indenture is, that there shall always be kept open for the benefit of the parties, free of buildings and encroachments, a way of ten feet. Neither party is at liberty to narrow, or enclose any part of the space so agreed to be left open. It is true, that by the memorandum Young has not a general right of passage for all purposes, but a limited right only “of passing and repassing occasionally for repairing and other special purposes, and for light and air for his buildings.” But this use does not narrow the effect of the covenants in the indenture to have the way kept free and without incumbrances. On the contrary, the very object of the parties in respect to this limited right of way is best attained by a free passage, not only for repairing, but for light and air. The fence' was, therefore, wrongfully erected by the defendant Verdict for the plaintiff.