Newton v. Newton

34 Mass. 201

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1835
• Status: Published

Opinion

Putnam J.

afterward drew up the opinion of the Court. By the deed from the defendant and another, to the plaintiff, dated April 15, 1828, the plaintiff became entitled to the south east room, with a right to bake in the oven in the kitchen belonging to the defendant. There was a door leading Jrectly from the southeast room into the kitchen ; and it is too clear for argument, that by a proper construction of that deed, the plaintiff had a right to use that door to pass to the kitchen and to the oven on the proper days assigned. The defendant therefore unlawfully shut and fastened the door, and interrupted the plaintiff in his right to go through that door to the kitchen and to the oven. The direction of the Court of Common Pleas was right upon this matter ; which grows out of the first count.

The third count is for shutting up a passage way from the front entry to the plaintiff"s cellar, which is under the southeast room, which the defendant and another conveyed to the plaintiff by the deed before mentioned, “ with a privilege in the kitchen to pass and'repass to the kitchen stairs into the cellar, till such time as the one in the possession of the kitchen builds cellar stairs under the front chamber stairs in the front entry, then to have no privilege to pass the kitchen stairs, but to have privilege to use the front stairs into the cellar and chambers.”

The stairs under the front entry were built afterwards, and thereupon the plaintiff ceased to have any right to use the kitchen stairs ; but in virtue of the deed before mentioned, certainly as between the parties, he acquired a right immediately to use the new stairs under the front entry, to go to his cellar. This right was perfect as against the defendant, the grantor, who obstructed the plaintiff.

Upon a reasonable construction of the assignment of the dower, and of the deed before cited, we think the Court of Common Pleas were correct in their direction upon the right of the plaintiff to the use of the new stairs under th'e front entry instead of the kitchen stairs, which were to be used until the new stairs were built. In the assignment of dower, various easements are granted to the widow, in common with the heirs. She has a right to pass through the kitchen and down the cellar stairs into her cellar, until the heirs shall build convenient stairs under the front entry, under the front stairs. These were dearly a substitute for the others, and there can be no question but that the others were to be used by the heirs in common with her. And when the defendant and another gianted their right to the plaintiff, they must have so understood the conveyancing. They limit the right of the plaintiff to the use of the kitchen stairs, to the time when the new stairs should be built, and then he was to have the right of passage to his cellar over the new stairs. One was a substitute for the other. So if the defendant had authority from the widow and had given notice of it, and had claimed to act under her, yet by a just construction of the conveyancing, she herself had only a privilege to pass over the new stairs ; and the plaintiff, claiming under the defendant and other heirs, had the same privilege. It is only by implication that the widow has any right of passage over the new stairs that were to be built under the front entry. But when the heirs divide, and he defendant and another convey to the plaintiff, they say that when the new stairs shall be erected, the plaintiff shall have 10 right to continue to use the kitchen stairs, but is “ to have orivilege to use the front stairs into the cellar.” So expressing n terms in the deed to the plaintiff, what can only be got by easonable implication in regard to the widow, respecting the right to pass over the new stairs. But that implication is necessarily to be drawn from the apparent intent of the assignment. The cellar under the front stairs was accepted by the widow as part of her dower, subject to the right of way which the be'rs had to pass over the stairs, which led into it from the front entry, and from thence through the cellar assigned to the widow, to the cellar of the other heirs. It seems to us, therefore, that the plaintiff is entitled to recover upon the third count.

The fourth count was for obstructing the plaintiff in cleaning out tie well, which the parties had a right to use in common. It appeared that the water had become offensive to the taste and smell. The plaintiff caused it to be pumped out, and employed a man to go down into the well to examine it, when the defendant prevented him. And the defendant contends that it was altogether unnecessary for the plaintiff to send anybody into the well for that purpose, because he, the defendant, subsequently ascertained the fact that there were no impurities in the well, by employing a man to go down and examine it. Now that was precisely what the plaintiff wanted to do, and had a right to do, but was prevented from doing. He had a right to examine the well himself, in person, or by his servant. The direction of the Court of Common Pleas upon this part of the case was entirely correct.

The opinion of the whole Court is, that the exceptions to the rulings of the Court of Common Pleas shall be overruled, and judgment rendered upon the verdict for the plaintiff.