Hayes v. Di Vito

4 N.E. 828, 141 Mass. 233, 1886 Mass. LEXIS 176

Opinion

W. Allen, J.

The defendants had a right of way over the locus as appurtenant to lot A2; the plaintiff had no right to obstruct the passageway with gates; and the defendants lawfully broke down the gates in the exercise of their right to remove the obstructions.

The fact that the defendants also claimed a right in the passageway as appurtenant to lot B did not give the plaintiff a right to obstruct it, and did not impair the right of the defendants to remove the obstruction. They did only what they had a right to do, and made no wrongful use of the way, as was done in Davenport v. Lamson, 21 Pick. 72. The fact that they intended to make an unjustifiable use of the way at some future time could not make them trespassers.

Exceptions overruled.