Payson v. Burnham

• Decision Date: 07 May 1886
• Citation: 141 Mass. 547,6 N.E. 708
• Parties: PAYSON and another v. BURNHAM and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 547

6 N.E. 708

PAYSON and another v. BURNHAM and another.

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 1886

COUNSEL

Richard Olney and H.H. Sprague, for plaintiffs.

Hutchins & Wheeler, for defendants.

OPINION

C ALLEN, J.

The plaintiffs being the owners of dwelling-house No. 88, Beacon street, in Boston, seek to restrain the defendants, who are the owners of the adjoining dwelling-house on the east, No. 87, from maintaining a bay-window, which, at the time of the filing of the bill, the defendants had begun to erect, projecting two feet and six inches south of the front wall of their house. Both estates are situated between Brimmer and Beaver streets. Before the building of the bay-window had been begun, the plaintiffs gave notice in writing to the defendants that the proposed construction was deemed an injury to the house No. 88, and a violation of the plaintiffs' rights, and that, if persisted in, resort would be had to legal remedies.

The rights of the parties depend, in our view, on the following facts: On the twenty-sixth of January, 1824, the Boston & Roxbury Mill Corporation, being the owner of the mill-dam entered into an indenture with Jonathan Mason and others, the so-called Mount Vernon proprietors, who were the owners as tenants in common of the flats north of the mill-dam, from Charles street westerly, including the premises where the houses of the plaintiffs and of the defendants now stand. The material portions of the indenture are as follows:

"Whereas, the parties of the second part claim to be proprietors of the flats lying north of and contiguous to the dam of the party of the first part, extending from the upland, on the Boston side of Charles river, to low-water mark, and are desirous of filling up and converting into solid land a part of the premises adjoining the north side of said dam, and of raising the same to a level therewith, so as to be fit for buildings, and to have the right of passing from the premises, or from any buildings thereon erected, upon and over said dam into the city of Boston, and back again, without payment of toll: now this indenture witnesseth that the said parties, for and in consideration of the covenants herein expressed by them, respectively, to be performed with each other, hereby agree as follows: (1) The party of the second part may proceed to fill up the flats by them owned, contiguous to the north side of said dam, and to the level of the top thereof, westerly, to low-water mark. (2) A straight line shall be drawn, beginning on the cap-sill of the wharf of the party of the second part, a distance of ninety-nine feet from the line of iron posts in the south wall of the dam, and thence running parallel with said line of posts, and at the same distance therefrom, to or towards low-water mark; and the space comprehended between said straight line and the said north side of the dam shall be filled up by the party of the second part, but no building or fixture of any kind shall be placed south of said straight line; and, if any such buildings or fixture shall be placed south of said line, the party of the first part may cause the same to be removed, it being the mutual intention of the parties that the space thus filled up shall be identified with the said dam for the purposes of a highway, without any impediment or obstruction by either party to be made or procured. (3) That part of said highway which lies between the aforesaid straight line and a line drawn along the center of said dam or highway thus widened, and extending as far as the land thus filled up, shall be kept in like repair, for the purpose of traveling, as the part of the dam contiguous thereto, at the expense of the party of the second part, so long as they continue to be proprietors of the flats and land immediately contiguous to the dam, and afterwards by the several owners or occupants of the immediately contiguous lots for the time being, in proportion to the measurement of said lots abutting on said highway or dam, until the same shall become a public highway to be maintained at the public expense; and in default of such repairs it shall be lawful for the party of the first part to make the same, and to charge the same, in the aforesaid proportions, to the contiguous lots owned by the delinquents, and to recover the same at law from the owners or occupiers of such lots, when such expense shall be incurred; and it shall be lawful for the party of the first part to place against the lot or lots of any person or persons neglecting or refusing to make such repairs, or to pay their respective proportions of the expense of making the same on demand, such fence or barricade, in any part of the land filled up, as may prevent such owners or occupiers from access to the said dam, until such repairs shall be made, or the expense incurred by the corporation for making the same shall be refunded; and the party of the second part agrees that in all deeds of lots on said road by them to be given a proviso shall be inserted in reference to this article, making such lot subject to the repairs herein expressed and intended."

In 1828 the said tenants in common made partition of their lands, and a lot, which includes the premises now owned by the plaintiffs and by the defendants, was set off to Otis, one of their number. At this time the land as far north as the straight line fixed in article 2 of the above indenture had been filled to a level with the mill-dam; but it cannot now be precisely ascertained how much or what part of it was from time to time specially prepared for use as a sidewalk or macadamized under orders of the city government. There is a space in front of the houses, now inclosed by iron fences, and extending several feet in front of the stone steps hereinafter referred to. This space has never been specially prepared for travel, either as a carriage-way or sidewalk, nor ordinarily used as such, although prior to 1847 it was left open and uninclosed, and was in no manner separate from the traveled part of the way. In 1831 Beacon street was laid out over the mill-dam to a point westerly of the premises, but the north line of the street was not specifically defined, and the parties are at variance whether it did or did not include the space now inclosed by the iron fences. The determination of this is not material. In 1835 the mill corporation became the owner, through mesne conveyances, of the above-mentioned lot, which was set off to Otis in the partition of 1828, and which includes the land now owned by the plaintiffs and by the defendants.

In 1843 the owners of several of the lots on Beacon street, to the easterly of what is now Brimmer street, had erected houses thereon, the front walls of which projected southerly over the line stipulated for in the indenture of 1824, and the door-steps of which, made of stone, in many cases projected as much as seven feet beyond the fronts of the houses. On the ninth of October, 1843, the mill corporation, being now the owner of the lot above mentioned, entered into an indenture with the several persons who then owned the rest of the premises which had been divided by the deed of partition, of which indenture the following are the material portions:

"Whereas, the said corporation and the said Otis and others, on the twenty-sixth day of January, 1824, made, executed, and delivered a certain indenture in relation to certain land and flats at that time held in common by said Otis and others, and a wharf then contemplated to be built thereon, which land, flats, or

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