It appears by the bill of exceptions that the plaintiff is the owner of the soil; and by a familiar rule of law, the right of possession follows the.right of property, when not demised, or the right of possession transferred by the owner to another. It appears equally clear, that the defendants were tenants for years of the two warehouses, under title derived *192from those who were parties to the deed of partition, and are entitled to the right of way, and to all the easements and privileges, reserved in that deed to owners of the lots set off in severalty.
The plaintiff then was the owner of the soil, in possession, and in a condition to maintain trespass; and the question is, whether the acts done by the defendants were justifiable under their reserved rights. • The defendants clearly had a right of entry for certain specified purposes, so that the mere entry of the close was not a trespass; and therefore the real question is, whether the defendants entered upon and used the land for purposes not warranted by the reservation; if so, the action lies.
We will first consider the complaint of the plaintiff, that the defendants had used the premises as a place of. deposit for merchandise. It appears to us that this was a use of the soil not warranted by the reservation of a right of way to and from the warehouses. But in order not to be misunderstood, we would add, that a right of way carries with it all rights to the use of the soil, properly incident to the free exercise and enjoyment of the right granted or reserved. A right of way to a warehouse would, in our judgment, authorize the tenant of the warehouse to place on the ground goods brought to the warehouse, and keep them a reasonable and convenient length of time, to put them in store; and to place and keep goods on the ground a reasonable length of time, which are to be carried from the warehouse. And what would be reasonable and convenient, would be a question of fact, dependent on many circumstances. What would be an unreasonable length of time to leave goods on the sidewalk or in the street, when much frequented, would not be unreasonable on rear ground, when they would incommode no one having an equal right of way. But here the case expressly finds that the place was used as a place for the deposit of merchandise, which is another and dis tinct use from that reserved, and which,, whether valuable or not, remains with the owner of the land. So the defendants seem to have thought; for, on objection being made, they ceased so to use the land as a place of deposit, and did not claim *193it, as a reserved right. Still, such yielding of the right was no satisfaction for damages already accrued, however small; and therefore, it being in violation of the plaintiff’s right, he was entitled to nominal damages.
We are apprehensive that, by some inadvertence, the attention of the judge was not called specially to the rule of damages applicable to this part of the case. Although the fact that the ground had been used by the defendants, as a place of deposit for merchandise, was averred in the declaration, put in issue by the answer, and damages claimed for it, yet it is obvious that the attention of the counsel was more particularly directed to the other part of the case, that of the railway.
The first part of the instructions to the jury was obviously given in reference to the plaintiff’s argument, now repeated here, that the words in the reservation, “ in as free and ample a manner as they now are, or'heretofore have been, used and enjoyed,” were words of restraint, and limited the abutter to the use of such easement, as it had before been used. But we are of opinion, that the direction given was correct; that these words do not prevent the abutter from having a full right of way, for all purposes, with all improvements, not only in the manner before used, but in any other manner of using the same right; and that the words quoted, if they had any operation, were intended to enlarge, and not restrict, the right reserved by the general terms. For instance, if it had before been a mere surface of earth, it might be improved by macadamizing, paving or planking, being limited to the use of the same right, in a manner more convenient and beneficial for those having the common right. This we think was a correct construction of the reservation. The court then went on to apply the above rule respecting improvements, to the subject of the railway, which we shall consider hereafter.
The directions of the court on the subject of damages seem in terms to apply to the whole case, and we think must have been so understood by the jury, without regard to the difference between the two distinct grounds, to wit, the use and occupation of the land for a purpose for which it was not reserved, and. the *194railway, which was claimed by the defendant to be a mere improvement of the right and easement reserved, and not a separate and distinct use of the land, not granted. If, for instance, the defendants used the land, for a right not granted, as for a place of deposit of goods, it was a violation of the right of the plaintiff as owner, it was in law a trespass, and though the plaintiff sustained no actual or appreciable damages, still he was entitled to maintain the action,"and have a verdict for nominal damages.
Upon the other point, whether the laying down of the railway was a distinct use of the soil, for a purpose not reserved, or a reasonable improvement of the right of way reserved; the direction we think was substantially correct, though in strictness, perhaps, it was rather a question of fact than of law. "We have already stated as our opinion that the defendants, with the other abutters, had a right to make improvements in the passage, so as to make it more beneficial for themselves, without injury to the owner of the land, or others having an equal right of way; but not to use it for another and distinct purpose. We think therefore it should be left to the jury to determine, from the evidence, whether the laying down by the defendants of an artificial structure of a fixed and permanent character, at their own expense and for their separate benefit, although it did not interrupt other abutters in their use of the surface as a passage way, or cause any actual damage to the owner of the soil, was or was not a use of the soil for a distinct purpose beyond that of a right of way. If it was a use for a distinct purpose, it was adverse to the right of the plaintiff; keeping it there twenty years would have given the right to the defendants to continue it. If such were its nature and character, the plaintiff would have a right to maintain his action, and recover nominal damages, in order to vindicate his right. Newhall v. Ireson, 8 Cush. 599.
But if the laying down of a platform of plank on the ground with iron rails or bars along it, on a level, or nearly on a level with the residue of the yard or passage way, was not a new and distinct use of the soil, but only an improvement of the *195surface, to fit it the better for the passage of persons, teams and carriages and the transportation of merchandise, not injurious to the other abutters, nor to the owner of the land, it was not a new and distinct use of the soil; it was within the right of way reserved to the abutters, not adverse to the right of the owner, no right would be acquired by its continuance; and therefore the action could not be maintained.
Upon the first ground the court are of opinion that the ver diet ought to be set aside, and a new trial had in this court