Phipps v. Johnson
Massachusetts Supreme Judicial Court
Tort for obstructing the plaintiff’s right of way over the defendant’s land by maintaining a building thereon. Writ dated November 27, 1865. At the trial in the superior court, before Ames, C. J., it appeared that the plaintiff and the defendant were respectively owners of adjoining lots of land in Hopkinton, the plaintiff being the grantee of Benjamin F. Herrick, and the defendant of Orame! Martin and said Herrick; that on the plaintiff’s lot Herrick, before conveying it to…
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Tort for obstructing the plaintiff’s right of way over the defendant’s land by maintaining a building thereon. Writ dated November 27, 1865. At the trial in the superior court, before Ames, C. J., it appeared that the plaintiff and the defendant were respectively owners of adjoining lots of land in Hopkinton, the plaintiff being the grantee of Benjamin F. Herrick, and the defendant of Orame! Martin and said Herrick; that on the plaintiff’s lot Herrick, before conveying it to the plaintiff, had erected a building, which, by an error in ascertaining the dividing line, extended across said line…
1Opinion of the CourtChapman, J.
The deed of Martin and Herrick to the defendant contains the following reservation: “ And the said Herrick, his heirs and assigns, is to have the right and privilege to pass and repass over the above granted premises for the purpose of repairing his building at all times when necessary, the said pass-way to be only a foot passage for said purpose.”
This was not a reservation of a right to pass at all times; and intervals of many months or years might elapse in which there would be no occasion to make repairs. During these intervals there would be right to use the way. And as the plaintiff…
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