Buss v. Dyer

• Decision Date: 30 August 1878
• Citation: 125 Mass. 287
• Parties: George W. Buss v. Richard B. Dyer
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 287

George W. Buss v. Richard B. Dyer

Supreme Court of Massachusetts

August 30, 1878

Argued March 29, 1877 [Syllabus Material]

Suffolk. Tort for tearing down, refusing to rebuild and preventing the plaintiff from rebuilding, a chimney, in which the plaintiff claimed an easement. Writ dated March 16, 1875. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows:

The plaintiff introduced evidence tending to prove tat previously to July 12, 1844, John E. Thayer and Nathaniel Thayer built a block of five wooden houses on land owned by them on Meridian Street, East Boston; that these houses were then or afterwards numbered from 61 to 69 on said street, inclusive that the chimney in question, at the time the block was built, was placed between the houses numbered 63 and 65, but wholly upon the premises of No. 65, for the use of both houses, and was constructed with connections or stove-holes for each house; that on July 12, 1844, the Thayers conveyed by simultaneous deeds (which contained covenants against all incumbrances made or suffered by them) the premises No. 63 to Oliver Lewis, and the premises No. 65 to Martin Lewis, both deeds describing the premises by metes and bounds; that by mesne conveyances the plaintiff became, on March 5, 1873, the owner of the premises No. 63; that on November 14, 1874, the chimney in question was torn down by the defendant, (to whom the house No. 65 was conveyed on October 7, 1874, by the heirs of Martin Lewis,) and was never rebuilt; and that the defendant prevented the plaintiff from rebuilding, and refused to allow him to rebuild it. In none of the deeds or mesne conveyances above referred to was any specific mention made of any right to use the chimney in question, though in each the premises were conveyed with "all rights easements, privileges and appurtenances to the said land belonging." The plaintiff claimed no right to use the chimney by prescription.

For the purpose of showing that a right to use the chimney passed by the deed from the Thayers to Oliver Lewis, by implication, as an appurtenance to the house on the premises so conveyed, the plaintiff introduced evidence tending to show that, at the time Oliver Lewis became the owner of the premises No. 63, a suitable chimney, which would be a substitute for the chimney in question, could not be built wholly upon his premises at a reasonable cost and expense; but this was contradicted by the defendant. As bearing upon this question, evidence was introduced by both parties to show what would be the cost and expense of building such a chimney at the time of the trial and at the time when the chimney was torn down.

For the purpose of showing that the right to use the chimney in question had not been lost or extinguished, the plaintiff introduced evidence to prove that the chimney and the houses of himself and the defendant were in good condition up to the time when the chimney was torn down; that they had not been destroyed by the elements or mere lapse of time; and that they were not in such a condition that they needed to be rebuilt from the bottom; and the defendant introduced evidence to prove the contrary, and that the plaintiff could have built a suitable chimney upon his own estate as a substitute for the one torn down at a very small cost, especially soon after the chimney had been torn down.

The plaintiff asked the judge to rule as follows: "If the plaintiff acquired a right to use the chimney in question under the deed from the Thayers to Oliver Lewis, such right so acquired was not lost or terminated until both the chimney and the houses of the plaintiff and defendant were destroyed by the elements or mere lapse of time, or were in such a condition that they had to be rebuilt from the bottom."

The judge refused so to rule; but instructed the jury that if such a right was acquired by the plaintiff through the deed from the Thayers to Oliver Lewis, yet if the chimney at the time it was torn down was unsafe and needed to be rebuilt from the bottom, the defendant had a right to tear it down and the plaintiff could not recover. No instructions were given as to whether or not the condition of the houses of the plaintiff and defendant, or either of them, had anything to do with the duration of the alleged easement, or right to use the chimney in question, and the instructions given were objected to only on the ground of that omission. The jury were fully instructed on the other questions of law in the case; and, among other things, were instructed that no servitude, as claimed, could be created by implication of law unless there was a reasonable necessity therefor; and that if the plaintiff, with reasonable labor and expense, could have built a suitable chimney on his own estate, he could not claim a right to use that upon ...