Argued January 6, 1896
Decided January 14, 1896
William F. Cogswell for appellants.
John H. Hopkins for respondents.
The dispute between the plaintiffs and the defendants is over the true construction which is to be given to the language of the grant in the deed to Hahn, the defendants' predecessor in title, whereby an easement in the alleyway was reserved to the grantee. The grant is of "the privilege of the main alley leading to the Palace stables, so called, as an easement for ingress and egress along the north line or alley line of the premises hereby deeded, for the distance of ninety-eight feet west from Franklin street and no more and for no other purpose." We are asked to construe this grant as one merely of the privilege to use the sidewalk of the alleyway for ingress and egress along the line of defendants' property, and to hold that a change in the mode of the user is prohibited and would cause an extinguishment of the privilege or easement. The request assumes, and such is the argument, that with the grant of the privilege runs some limitation upon its enjoyment. This limitation is said to be found in the description of the privilege, commencing with the words "as an easement for ingress and egress, etc." These "additional words," as the learned counsel for the plaintiffs terms them, seem to furnish some ground for his argument; but, in our judgment, they cannot be so narrowly construed without importing into the language employed an element of intention, which is at variance with the apparent general purpose of the grant and which the situation of the parties at the time seems rather to deny. These words rather emphasize an intention of the original grantor that, while the alleyway might be used by the owner of the dominant tenement, that use should be confined to the purpose of passage to and from Franklin street and to the extent that it might be needed by the property bordering upon the way.
The language, in which the grant of the privilege of the alleyway is couched, is of too general a nature to warrant the construction that the use was to be restricted to any particular mode of ingress or egress. The words ingress and egress are as applicable to the passage of horses and carriages, as they are to the passage of foot passengers. The alleyway extended from Franklin street to a point in the rear of the defendants' property and the concluding words of the grant, "and no more and for no other purpose," have obvious reference to the extent in length of the alleyway, which should be properly available to the defendants for the use of the same for the purpose of ingress and egress.
Nothing in the language of this grant conveys the idea of an intended limitation upon the existence and continuance of the privilege, in the event that the defendants should change the character or uses of their property bordering thereupon; so long as the alleyway is made use of for the same purpose as before, that is to say, in order to pass to and from Franklin street. The cases of Allan v. Gomme (11 Ad. E. 759) and Henning v. Burnet (8 Exch. R. 187), to which the learned counsel for the plaintiffs refers, are not authorities which conflict with the construction which we think should be given to the language of this grant. The former case related to the reservation of a right of way to a stable and the loft over the same and the space under the loft, then used as a woodhouse. Lord DENMAN, who delivered the opinion, said: "The present case does not, however, depend upon the mode of using the way, but upon the legal effect of the reservation. Upon that we are of opinion that, under the terms of this deed, the defendant is not entitled to have the right of way claimed, but that he is to be confined to the use of the way to a place which should be in the same predicament as it was at the time of the making the deed." In the other case of Henning v. Burnet, the grant was of a way to a dwelling house, coach houses and stables, and the question was whether the defendant was justified in using the way to reach a certain field. In each case, a limitation was imposed, with respect to the privilege of the way, which is not to be found in the present case; where the grant is without any other limitation than a restriction of the use of the alley for the purposes of ingress and egress. It is unnecessary for us to say whether, if the privilege is to use a way to accomplish a certain purpose, as in the English cases, the privilege might lawfully be extended to accomplish other purposes, though not effecting a change in the mode of use of the way. That is not this case. We have here a case where the defendants are entitled to an easement in the alleyway and subject to which the plaintiffs became the owners of the adjoining property. In the general language, in which the easement was granted, we find no limitation upon the use of the way, in so far as it is for ingress and egress. The easement cannot be extinguished by changes in the uses and occupancy of the defendants' property, by reason of which the passageway may be more frequently used by foot passengers, as well as by horses and vehicles, without importing into the language of the grant a meaning which the words, standing by themselves, do not convey. That we could not do without disregarding a principle of construction, which regards everything as passing by a grant which is necessary to its reasonable enjoyment.
We think the judgment appealed from should be affirmed, with costs; with leave, however, to the plaintiffs to amend their complaint, if so advised, within twenty days after the service of a copy of the order upon our remittitur.
All concur, except VANN, J., not sitting.