Tucker v. Howard

122 Mass. 529, 1877 Mass. LEXIS 175

• Court: Massachusetts Supreme Judicial Court
• Decided: May 4, 1877
• Status: Published

Opinion

Endicott, J.

The court is of opinion that there must be a decree for the plaintiffs on this report.

The city of Boston in 1835 conveyed to Loring and others the estate now owned by the defendant, bounding it on a passageway five feet wide, reserved by the city for a way to its schoolhouse, and for any other purposes for which it might see fit to appropriate it. The deed conveyed to the grantees the right to build over this passageway or any part of it, leaving it “ five feet wide in the clear and not less than ten feet high.” The language of the deed is explicit. The width of the way is exactly given, and the right to build over it must be exercised in such manner as to leave the passageway five feet wide in the clear. In other words, the passageway reserved by the city is not to be narrowed or obstructed by reason of the structure which the grantees or their assigns may erect over it. The case does not present the question what would be the rights of the parties if the defendant could not cover the passageway without support from below within the way itself. The evidence reported shows that it is practicable to do so, at no very disproportionate expense, without such suppoi’t.

Nor do we find anything, in the deed of the city to Loring and others, which prevented the city from conveying an easement in this way to John C. Tucker, as appurtenant to his adjoining land, in common with the city and other persons. The fact that Tucker was at the time of . the conveyance to him a member of the city council, and one of the committee on public buildings, does not invalidate his deed. It does not appear that he took any part in the transaction officially, or that, as agent for the city, he conveyed to himself. The city afterwards conveyed its right, title and interest in the passageway to Howard, but he took his title subject to the easement previously conveyed to Tucker.

The finding that the defendant did violate the rights of the plaintiffs by the erection of the wall in the passageway was therefore proper. No question is reserved as to the form of the decree; that must be determined before a single judge.

Decree for the plaintiffs.