Canny v. Andrews

• Decision Date: 19 September 1877
• Citation: Canny v. Andrews, 123 Mass. 155 (Mass. 1877)
• Parties: Patrick Canny v. Adeline Andrews
• Court: Supreme Judicial Court of Massachusetts

123 Mass. 155

Patrick Canny v. Adeline Andrews

Supreme Court of Massachusetts

September 19, 1877

Suffolk. Bill in Equity, filed December 27, 1876, to restrain the defendant from removing a chimney in which the plaintiff claimed certain easements. Upon the filing of the bill, a temporary in junction was granted. At the hearing, before Colt, J., the following facts were admitted by the parties:

About a hundred years ago, a block of three houses was erected on the corner of Clark Street and Hanover Street, in Boston. On September 13, 1869, the city of Boston passed an order authorizing the widening of Hanover Street, and, in pursuance of said order, purchased by deed of warranty, from Nancy Pierce, the corner lot of the block, with the building thereon, which fronted on Clark Street twenty-nine and one-half feet, and on Hanover Street seventy-two feet. On May 10, 1870, the city of Boston sold the building on the corner lot to George W. Gerrish, who proceeded at once to tear down the building, and removed all the materials constituting the same. After the sale and removal, the city of Boston appropriated to the widening of Hanover Street a strip of said corner lot of land, twenty-four feet and nine inches wide, and fined up the cellar formerly under the building. The removal of the building was necessary from the widening of the street. On December 26, 1876, the city of Boston sold by public auction the remaining part of the corner lot without any building thereon, to the plaintiff, and delivered to him a quitclaim deed thereof on the same day, and he has since been in possession thereof. The defendant is seised of the lot and house adjoining the plaintiff's land. Before the removal of the building by Gerrish, there was no wall between the two buildings, and they were a mutual protection to each other, beams running lengthwise between the two buildings supporting the floor timbers of both houses. The beams projected, and still project, over the line of the plaintiff's estate six inches at the Clark Street end but inclined entirely under the defendant's building at the rear end. There is a chimney covering thirty-six square feet of land standing wholly in and belonging to the land of the defendant, in which there were fireplaces, and closets adjacent to the fireplaces, opening into each floor of the building removed. An easement by prescription existed to the use of the fireplaces, closets, and beams supporting the floor timbers, which now exists, unless terminated by the destruction of the building. Upon the removal of the building by Gerrish, the side of the defendant's building was laid open and left unprotected from the elements, and in such a condition that the beams and rafters which supported the floorings and roof of the defendant's building were uncovered, and the plaster and lathing, which had been the only partition between the buildings, were exposed to view and were the only protection of the defendant's building from the inclemency of the weather. The building became untenantable, and, for its proper use and enjoyment, it became necessary to erect a suitable outside wall on the side of her building next adjoining the plaintiff's land. The defendant began to tear down the chimney...