¶1BY THE COURT. The true intent of the indenture is, that there shall always be kept open for the benefit of the parties, free of buildings and encroachments, a way of ten feet. Neither party is at liberty to narrow, or enclose any part of the space so agreed to be left open. It is true, that by the memorandum Young has not a general right of passage for all purposes, but a limited right only “of passing and repassing occasionally for repairing and other special purposes, and for light and air for his buildings.” But this use does not narrow the effect of the covenants in the indenture to have the way kept free and without incumbrances. On the contrary, the very object of the parties in respect to this limited right of way is best attained by a free passage, not only for repairing, but for light and air. The fence' was, therefore, wrongfully erected by the defendant Verdict for the plaintiff.
4 F. Cas. 449
Brownell v. Dyer
U.S. District Court
Decided November 15, 1828
U.S. District Court · decided 1828-11-15
At law. Case [by Pardon Brownell against Elisha Dyer] for disturbance of a right of way ten feet wide. Plea, not guilty. [Verdict for plaintiff.] At the trial it appeared, that the parties respectively claimed title to the premises on each side of the way, as privies in estate of Benjamin Eddy and John Young, between whom an indenture was made on the 18th of September, 1794, under which the right of way was claimed.
Decided 1828-11-15