Tucker v. Howard

128 Mass. 361, 1880 Mass. LEXIS 83

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1880
• Status: Published

Opinion

Gray, C. J.

The defendant, since the filing of this bill, has built a wall in the plaintiffs’ passageway, which has been decided to be a violation of their right. Tucker v. Howard, 122 Mass. 529. The plaintiffs’ right in the passageway included the right to so much light and air as was necessarily incident to the use of the passageway. Atkins v. Bordman, 2 Met. 457. The master finds that the permanent damage to the plaintiffs’ estate, if the defendant’s building is allowed to remain as it is, is $200, and that the building can be altered in the manner directed by the decree appealed from, at an expense of $530. The fact that no temporary injunction has been granted does not affect the kind or the extent of the remedy to which the plaintiffs are entitled upon establishing their right at the hearing on the merits. The defendant having, by the service of process, full notice of the plaintiffs’ claim, went on to build at his own risk; and the injury caused to the plaintiffs’ estate by the defendant’s wrongful act being substantial, a court of equity will not allow the wrongdoer to compel innocent persons to sell their right at a valuation, but will compel him to restore the premises, as nearly as may be, to their original condition. Dent v. Auction Mart Co. L. R. 2 Eq. 238, 246,255. Aynsley v. Glover, L. R. 18 Eq. 544, and L. R. 10 Ch. 283. Krehl v. Burrell, 7 Ch. D. 551, and 11 Ch. D. 146. Schwoerer v. Boylston Market Association, 99 Mass. 285. Creely v. Bay State Brick Co. 103 Mass. 514. Nash v. New England Ins. Co. 127 Mass. 91. Salisbury v. Andrews, ante, 336. The decree for a mandatory injunction, and for payment of damages suffered pending the suit, and for costs to the plaintiffs as the prevailing party, must therefore be Affirmed, with costs.