¶1The defendant, since the filing of this bill, has built a wall in the plaintiffs’ passageway, which has been decided to be a violation of their right. Tucker v. Howard, 122 Mass. 529. The plaintiffs’ right in the passageway included the right to so much light and air as was necessarily incident to the use of the passageway. Atkins v. Bordman, 2 Met. 457. The master finds that the permanent damage to the plaintiffs’ estate, if the defendant’s building is allowed to remain as it is, is $200, and that the building can be altered in the manner directed by the decree appealed from, at an expense of $530. The fact that no temporary injunction has been granted does not affect the kind or the extent of the remedy to which the *363plaintiffs are entitled upon establishing their right at the hearing on the merits. The defendant having, by the service of process, full notice of the plaintiffs’ claim, went on to build at his own risk; and the injury caused to the plaintiffs’ estate by the defendant’s wrongful act being substantial, a court of equity will not allow the wrongdoer to compel innocent persons to sell their right at a valuation, but will compel him to restore the premises, as nearly as may be, to their original condition. Dent v. Auction Mart Co. L. R. 2 Eq. 238, 246,255. Aynsley v. Glover, L. R. 18 Eq. 544, and L. R. 10 Ch. 283. Krehl v. Burrell, 7 Ch. D. 551, and 11 Ch. D. 146. Schwoerer v. Boylston Market Association, 99 Mass. 285. Creely v. Bay State Brick Co. 103 Mass. 514. Nash v. New England Ins. Co. 127 Mass. 91. Salisbury v. Andrews, ante, 336. The decree for a mandatory injunction, and for payment of damages suffered pending the suit, and for costs to the plaintiffs as the prevailing party, must therefore be Affirmed, with costs.
128 Mass. 361
Tucker v. Howard
Massachusetts Supreme Judicial Court
Decided February 27, 1880
Massachusetts Supreme Judicial Court · decided 1880-02-27
Bill in equity for an injunction against obstructing a passageway running from Merrimack Street in Boston, by erecting the wall of a building within it. A preliminary injunction was refused; and the defendant completed the wall.
Relies on Schwoerer v. Boylston Market Ass'n · Creely v. Bay State Brick Co. · Nash v. New England Mutual Life Insurance
Good law ✅— No negative treatment on recordhow we know
Decided 1880-02-27
How this case has been cited
Cited by 34 later decisions (2 by the Supreme Court) — most recently November 2023 · most notably Mills v. Green (1895), Gino's Pizza of East Hartford, Inc. v. Kaplan (1984)
1 federal appellate · 29 state decisions — followed in 14 states
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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