
    James George vs. George P. Cox.
    A deed of a lot of land “ together with a right of a free passage-way from ” the road, conveys a right to pass from the land to the road as well as from the road to the land; and this right of way, being appurtenant to the land, passes without specific mention by a subsequent conveyance of the land ¡ and if the grantee, at the time of the grant, with the acquiescence of the grantor locates the way of a given width, both thereby intending to determine its width, the grant becomes a grant of a way of that width ; but if its width is not determined by the parties, it remains a right of way of a width convenient for the ordinary uses of free passage.
    Tort for obstructing a way. Writ dated Feb. 28, 1872. The declaration alleged that the plaintiff owned a lot of land, (describing it,) “ and there was a way leading to the same from Pleasant Street, so called, in said Malden, which the plaintiff had the right to use as a footway and carriage-way; and the defendant erected a fence in and across said way, and placed stones and posts in the same, so that the plaintiff could not use the same.” In the answer the defendant alleged that “ if he erected a fence or placed stones or posts on any lands, (which he does not admit,) he erected and placed the same upon the lands of the trustees of the Centre Methodist Episcopal Society in said Malden, by order of, and as a member of, the board of said trustees of said society, in the erection of a suitable and proper fence for the protection of üheir meeting-house and upon lands in, upon or over which the plaintiff never had nor now has, any right or interest whatever as a passage-way or otherwise.”
    At the trial in the Superior Court, before Brigham, C. J., it was conceded that November 9, 1848, Samuel Cox and others were the owners of a lot of land (shown upon the plan on the next page) bounded : “ Beginning at a stake on the county road leading from Malden to Medford; thence running northerly by land of Charles Lewis to land of the heirs of William Barrett, deceased; thence running easterly by land of said heirs one hundred feet to land of Dwight Fisher; thence running southerly on land of said Fisher to the road aforementioned; thence running westerly by said road seventy-nine feet to the bound first mentioned.” This lot included both what is now the plaintiff’s lot and the land now owned by the trustees of the Centre Methodist Episcopal Society. November 9, 1843, Cox and others executed and delivered to one George H. Fall a deed conveying in fee “a parcel of land situate in the centre of said Malden and lying north of the new Methodist Meeting-house, bounded as follows, viz.: Westerly on land of Charles Lewis, northerly on land of the heirs of Wm. Barrett, deceased, easterly on land of Dwight Fisher, and southerly on land of us, the grantors ; said piece of land is about one hundred and forty-seven feet deep and about one hundred feet wide, meaning hereby to convey all that portion of the lot of land which was deeded to us by Samuel A. Cox, which lieth north of the fence as it now stands, which has been erected by said George H. Fall, together with a right of a free passage-way from Med-ford road by the easterly side of the meeting-house to said lot of land. Also a right to pass to and from said land on the westerly side of said meeting-house on such land as may be owned by us, the grantors herein named.”
    
      
      
    
    
      It was further conceded that September 23,1844, Fall executed and delivered to the plaintiff a deed of the same premises, which contained no mention of the way, except that reference was made to the deed to Fall “ for a more particular description of the premises.” It was also conceded that Samuel Cox and others, on March 9, 1853, executed and delivered to the trustees of the Centre Methodist Episcopal Society in Malden a deed of the remainder of the lot.
    The plaintiff introduced evidence to show that before the execution of the deed by Samuel Cox and others to Fall, Cox and others caused a post and picket fence to be erected on the line between their other land and that subsequently conveyed to Fall; that this fence extended from their westerly line to within 18 feet of their easterly line, and no farther; that subsequently, in the year 1855 or 1856, Cox and others caused horse sheds to be erected, extending on the west side of the lot to within ten feet of the west line, and on the east side to within eighteen feet of the east line, so as to leave a way eighteen feet wide; that after the land was conveyed to the trustees of the Centre Methodist Episcopal Society, and before 1860, the trustees erected a high, close, post and board fence, east of their church, in a line with the east end of the horse ■ sheds, and the east post of the cross fence, and 18 feet distant from their east line, and extended it from the horse sheds as far south as the southeast corner of the meeting-house, and about five feet distant from it, and that from this corner a stone abutment extended to the southerly end of the fence so as to leave the way 18 feet wide at that point, and that afterwards, in the year 1860, the trustees continued the fence with stone posts and pickets, from the abutment on the east side of the meetinghouse to Pleasant Street, their south line, in a direct line with the post and board fence, and the sheds; and that soon afterward, the way was graded and made passable and convenient for the travel of persons on foot and for horses and vehicles, to the width of 18 feet.
    The plaintiff also introduced evidence tending to show that the space 18 feet wide east of the meeting-house was wholly used from 1842, as a passage-way, not only by the people that worshipped there, but by him and by any and all persons that had occasion to come to his house for any and all purposes, till November, 1871, when the defendant caused the fence east of the meeting-house to be removed toward the east line of the meeting-house lot about eight feet, leaving a passage-way of only about nine feet and nine inches wide, east of the meeting-house, and that the way as so encroached upon was not reasonably fit for use as a passage-way.
    The defendant introduced evidence to show that he, at the time he removed the fence, was one of the trustees of the society, and that by vote of the trustees he was appointed a committee for removing, and was directed to remove the fence, and that all he did was done under the authority and by direction of the trustees, and that he did not remove the fence any nearer the fence on the east line than ten feet, and that all the travel through the passage-way before the removal of the fence was, and always since 1842 had been, where it went after the fence was so removed ; and also offered evidence to show that the passage-way of ten feet was and always bad been of sufficient width for all purposes of a passage-way to the plaintiff’s premises. The. defendant contended, and argued to the jury, as tending to explain the location of the fences and horse sheds, that in 1842, when the fence east of the meeting-house was built, it was not to indicate the width of the passage-way, but was for the purpose of corresponding with the fence west of the meeting-house, which was on the westerly line, and to be in symmetry with it, and the same distance from the church as the fence on the east side.
    The defendant requested the court to instruct the jury:
    “ 1. That the evidence did not show any right in the plaintiff to pass over the land of the said trustees of the Centre Methodist Episcopal Society easterly of their meeting-house, except what he acquired as grantee under the deed from George H. Fall to him.
    “ 2. That the deed from George H. Fall to the plaintiff did not convey any right to pass over the land east of the said meeting-house.
    “ 3. That the deed from Samuel Cox and others to George H. Fall only conveyed to Fall the right to pass from Pleasant Street to the land therein conveyed over the land east of the meetinghouse, and not the right to pass to and from the land to Pleasant Street over the land east of the meeting-house; and that if the plaintiff acquired any right under this deed to pass over the land east of the meeting-house, it was only the right to pass from Pleasant Street to the land, and not the right to pass and repass.”
    The court gave the first instruction and declined to give the others, but instructed the jury among other things as follows:
    “ If the jury found the facts to be that Fall, in 1843, fixed the boundary of the court by the erection of his cross fence, and that in 1855 or 1856 the trustees of the Methodist Episcopal Society confirmed this width and limit by erecting the horse sheds, and afterward, upon the same line, between 1856 and 1860, erected and maintained a fence until November 16,1871, and that Haven and others and their grantees acquiesced in this width of 18 feet, and that the same with their knowledge and without their opposition or objection has been entered upon and practically used by Fall and his grantees throughout the width of 18 feet, since 1843, these facts would operate to assign the right of way under the grant to Fall, and in legal effect would establish and define the way as if it had been described in the grant to Fall, as a way 18 feet in width. In the absence of these facts, establishing the width of the way granted to Fall, the legal effect, of the grant was to give Fall and his grantee free passage to and from hia land over a way of convenient width for all the ordinary uses of free passage. The plaintiff, to recover, must prove by the preponderance of evidence that the defendant’s acts injured him in his right of passage, either by depriving him of a free passage over a way established in the manner indicated, with a width of 18 feet, or by depriving him of a free passage over a way which was of convenient width for the ordinary uses of free passage to and from his land, and then whether the way left to plaintiff by defendant’s acts, ten feet in width, or of such width as the evidence proved, was of such convenient width, was a question for the jury, upon all the evidence.”
    The verdict was for the plaintiff, and the defendant alleged exceptions.
    
      I. W. & I. N. Richardson, for the defendant.
    
      T. H. Sweetser & W. S. Gardner, for the plaintiff.
   Morton, J.

The deed from Samuel Cox and others to George H. Fall, dated November 29, 1843, conveys a piece of land in Malden, lying north of the new Methodist meeting-house, “ together with a right of a free passage-way from Medford road by the easterly side of the meeting-house to said lot of land.” A right of a passage-way is a right to pass to and from the road, and the court properly refused to rule, as requested by the defendant, that this deed conveyed to Fall only the right to pass from the road to the land conveyed, and not the right to pass to and from said land. It is clear that the right of way was appurtenant to the lot of land granted by the deed. Its only apparent purpose was to furnish access to and egress from such lot, and there is nothing to lead to the inference that the parties intended it for any other use. Dennis v. Wilson, 107 Mass. 591, and cases cited.

As the deed to Fall annexed this way to the lot of land as an appurtenance, it follows that it passed by the deed from Fall to the plaintiff, as a part of the premises, though it was not specifically mentioned in the deed. Leonard v. Leonard, 7 Allen, 277. Underwood v. Carney, 1 Cush. 285.

The deed does not fix or denue the width of the way granted. But if the grantee, at the time of the grant, practically located the way of a width of eighteen feet, and the grantors then and for a long time subsequent acquiesced in this location, the parties intending to fix the width, this would operate as an assignment of the way, would show what the parties intended by the deed, and would have the same legal effect as if this width had been fixed by the deed. Bannon v. Angier, 2 Allen, 128.

The instructions of the presiding judge to this effect were correct.

It was a question of fact for the jury whether the width of the way had been thus established. If they should find that it had not been established, then the instruction that the grant to Fall gave him a way of convenient width for all the ordinary uses of free passage to and from his land, was appropriate and correct. And the question, in this alternative, what was a suitable width, was properly left to the jury upon all the evidence. Johnson v. Kinnicutt, 2 Cush. 153. The instructions at the trial appear to have been correct.

Exceptions overruled.  