Kendall v. Hardy

• Decision Date: 27 February 1911
• Citation: 94 N.E. 254,208 Mass. 20
• Parties: KENDALL v. HARDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 20

94 N.E. 254

KENDALL v. HARDY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1911

COUNSEL

Warren Garfield Whiteside & Lamson and Winthrop I. Nottage, for plaintiff.

Moorfield Storey and Harold S. Davis, for defendant.

OPINION

KNOWLTON C.J.

The plaintiff is the owner of the equity of redemption in an apartment hotel on the southerly side of Commonwealth avenue called 'The Colonial,' and the defendant is the owner of the 'Hotel Puritan' on the same avenue, a short distance west of the plaintiff's property. Both of these houses extend back from Commonwealth avenue southward to a passageway 16 feet wide, between Commonwealth avenue and Newbury street, which starts from a dead end at its eastern extremity and runs westward, parallel with these two streets and then turns at a right angle to the south and enters Newbury street. The land through which the passageway runs belonged to Henry M. Whitney and others, trustees. Their deed to Farwell, under which the plaintiff obtained her title, bounded the premises southerly 'on a passageway 16 feet wide, which leads to Newbury street, as shown on the plan hereinafter mentioned, and which is always to be kept open its full width for the benefit of the abutters thereon for the purposes of light, way, drainage and the like,' etc. The deeds from these grantors, under which the defendant claims title, bound the lots on the passageway, and refer to it in substantially the same way. The deeds to all the other abutters on that part of the passageway which runs parallel with Commonwealth avenue and Newbury street refer to the passageway in similar, although not identical terms.

There is no doubt that the presiding justice rightly ruled that the plaintiff, by her deed, acquired an easement in that part of the passageway which is in the rear of the defendant's building, and the right to have it kept open.

The defendant, in the erection of the 'Hotel Puritan' in 1908 and 1909, constructed four horizontal rows of bay windows, the lowest of which start at a height of from 19 to 20 feet above the surface of the passageway, and all of which project about 3 feet beyond the line of the passageway. The maintenance of the windows there is a technical invasion of the plaintiff's right, and this bill is brought to obtain a mandatory injunction which will compel the defendant to remove them. The defendant has constructed bins or vaults under the passageway, extending 7 feet and 4 1/2 inches beyond the line of it, which he uses for the storage of coal and other articles. Against the maintenance of these the plaintiff in like manner asks for an injunction.

The first and most important question is whether, under the circumstances, the plaintiff is entitled to the remedy that she seeks. She was not the owner of the property when these windows were constructed. George Wheatland was then the owner of it, subject to two mortgages to secure amounts which nearly equaled its value. He was also the owner of the larger one of these mortgages. She did not obtain her title until a considerable time after the windows had been constructed. While it is agreed that previously she had a moral right and interest in the property, we understand that she had no right that was enforceable or recognizable in law. The defendant procured from some of the abutters on the passageway an agreement in writing that he might erect and maintain the windows on the building, and all the abutters except the plaintiff have joined in the agreement, without the payment of any consideration. He went to Mr. Wheatland, who was the only person except the other mortgagee that had legal or enforceable rights in the property, and Mr. Wheatland's testimony in regard to the conversation is as follows: 'I told him I was not interested in it, and said I would not bring any suit. I did not want to do that sort of thing. I should not bring suit against a man when there was no reason. I did not think it proper for me.' The defendant testified that he told Mr. Wheatland 'what Mr. Kendall proposed to do, and Mr. Wheatland said * * * that he did not think that Mr. Kendall had any standing in the matter at all, that he had only---- He had a verbal agreement to redeem this, and there was due him then about $135,000, and he did not believe Kendall or anybody else would redeem the property at that figure, and asked if I did. * * * He did not wish to take any action that would seem hostile to Kendall, but that as far as---- Kendall could not do anything until he had title to the property, * * * and in the meantime I need not worry, * * * and so far as he was concerned, he would have no part whatever in any such action as Mr. Kendall was making.' This conversation was after the work had been begun and before it was finished. Kendall was the plaintiff's husband and agent.

The nearest bay window to the defendant's building is about 120 feet from 'The Colonial,' while on the building directly west of 'The Colonial,' between that and the 'Hotel Puritan,' there are bay windows projecting out over the passageway which have been there for 10 or 12 years, and, so far as appears, without objection from anybody. The nearer of these bay windows is within about 15 feet of 'The Colonial,' and the further within about 30 feet, and they are so located that from no part of the plaintiff's house can the bay windows of the defendant's house be seen, even by...