The sole question on this appeal is whether the fence erected by defendant's son is "a fence between him and me," within the meaning of the deed from Wooding to Hart. If so, it is admitted that the defendant's right of passage over the plaintiff's land was thereby terminated, and that the judgment of the trial court was right. From the terms of the deed it is plain that the lease of the passway was not to be terminated by the erection of buildings by Hart on or near the division line. The grantee had the right to utilize the whole of his lot by building up to the dividing line, and it was only the erection of a fence as such, that is to say, putting up a barrier between the grantor and grantee for no other useful purpose than that of a barrier, which was to end the use of the passway. The finding shows that the defendant's fence was built as such a barrier, that is, to prevent the plaintiff's tenants from going on the defendant's land. It is said that this fence is not a division fence, because it is not quite on the division line, and because it does not extend the whole depth of the lot but only between the barn and the house. Assuming that the words "a fence between him and me," were intended to refer primarily to a division fence, they do not locate the fence exactly on the division line nor limit it to a fence along the whole length of the dividing line. The arrangement whereby the grantee was to have the use of the passway so long as he abstained from building a fence between the grantor and the grantee, involved mutual concessions which ought to be observed in substance as well as in form; and the location of this fence within a few feet of the dividing line, across the entire open space left between the house and the barn, and accompanied by the finding that it was for the purpose of keeping the plaintiff's tenants from going on the defendant's land, satisfies us that it was in substance *Page 707 "a fence between him and me" within the true intent of the deed.
There is no error.
In this opinion the other judges concurred.