Gaw v. Hughes

111 Mass. 296

Opinion

By the Court.

The lots of the plaintiff and of the defendants were parts of a large tract of land formerly owned by John Ayers. 'He divided it into lots and laid out a “ proprietor’s way” now called Cherry Street Place, and afterwards sold the lot now owned by the plaintiff to Michael Manning. The material part of the description of the lot in the deed to Manning is as follows : “beginning at the northeast corner thereof, and on the southerly side of a proprietor’s way, thence running westerly by said way and crossing a ditch two hundred and thirty-four feet to a stake by the side of said way.”

By this deed a right of way over the “ proprietor’s way ” passed as appurtenant to the land conveyed to Manning. Tufts v. Charlestown, 2 Gray, 271. The plaintiff having Manning’s title may maintain an action of tort for obstructing his right of way, and can recover upon his second count if he proves that the defendants obstructed the way. The question whether the acts of the defendants interfered with the plaintiff’s use of the way ant. amounted to an obstruction, was a question of fact and should have been submitted to the jury. Meehan v. Barry, 97 Mass. 447. Exceptions sustained.