Welch v. Wilcox

101 Mass. 162

Opinion

Colt, J.

Under the deed of Langmaid a right was granted the defendant to the use of a passageway, as then laid out over the grantor’s land. The plaintiff claims under Langmaid by a subsequent deed which conveys the land, reserving to the owners of the defendant’s lot a right to a three feet passageway as laid out on the premises conveyed. It does not appear in what manner the way was laid out, but we must infer that it was by some well marked boundaries known and recognized by both parties. There was no gate separating the passageway from the street at the time of these conveyances, and in the opinion of the court the plaintiff has no right to erect and maintain a gate at the entrance of said passageway, or to narroxy the way as described.

If the obstruction in the way had existed at the time of the deed to the defendant, or even if it had been shown that similar passageways were usually so closed, the plaintiff’s claim would stand on stronger ground, for it may well be presumed that the parties to the grant were acquainted with the public usages, and created this easement with reference to those usages. The plaintiff, as owner of the soil, has a right to all the reasonable and beneficial use of the way which he can make, consistently with the enjoyment of the easement, and the use which others similarly situated make of their land is evidence of a reasonable use. This decision is not embarrassed by these suggestions, because there was no evidence of usage offered by the plaintiff.

This case is clearly distinguished from Atkins v. Bordman, 2 Met. 457, 467. The doctrine of that case is, “ that when no actually existing way, as bounded and located, is granted or reserved, the way in point of width and height shall be such as is reasonably necessary and convenient for the purposes for which it is granted.” The dimensions of the way were there held not to be expressed, and to be controlled by the purpose for which it was reserved.

When the way is defined as in the case at bar, the construction we give is, in the words of Shaw, C. J., “ necessary to the security of both parties. To the grantee, to insure him a way of known width and dimension, the sufficiency of which he may judge of before he closes his contract for the purchase; and to the grantor, to secure himself against the claim of the grantee to an indefinite right to pass over his premises.” Salisbury v. Andrews, 19 Pick. 250, 258. O'Linda v. Lothrop, 21 Pick. 292. Underwood v. Carney, 1 Cush. 285, 292.

By the agreement of the parties the entry must be

Judgment for the defendant.