Rodgers v. Parker

Dewey, J.

As to the right of the defendant to have an open avenue or way, coextensive with the extent of the lot purchased by him, there can be no question. The sale to the defendant was made by one having the entire estate, and was a sale by public auction of house lots laid out and numbered on a plan then exhibited; said lots being bounded by Hancock Avenue, which was also delineated on the plan, which plan was after-wards recorded in the office of registry of deeds. In this state of the facts, the grantor and those who succeed to his title to the remaining land are estopped from denying that there is such a way. Treating the right of the defendant to be of the more restricted character, of a way coextensive with his house lot, this right was violated in the erection of the fence in the line in which it was placed, the same not being at right angles with the avenue

But the farther ground of defence that the defendant, as purchaser of lot No. 7, may require that the entire avenue as staked out at the time of the auction sale and delineated on the plan shall be kept open as an avenue, having been also urged at the argument, we have also considered that question. This subject has recently been before us for our consideration in the case of Thomas v. Poole, 7 Gray, 83, under facts somewhat similar — a way staked out and to be opened by the grantor, the lot sold described as bounded in such way, but having more distinctly stated by words in the recital the extent of the new way. In the present case, the extent of the avenue is clearly marked upon the plan, and is as readily ascertained thereby as it would have been by a recital in words.

In the case of Thomas v. Poole, the court held that the way thus staked out and upon a part of which the lot sold was bounded, was to be kept open for its entire distance, as thus staked out and exhibited to purchasers, and that the right to have the same kept open was not limited to the extent of the land conveyed to any particular purchaser of one lot. It seems to us that the same principle is applicable to the present case, and that the entire avenue, as staked out and delineated on the plan exhibited at the sale and afterwards recorded, was as respects the plaintiff to be kept open as an avenue. Tn either aspect of the question the defence is well maintained.

Judgment for the defendant.