
    James C. Tucker & another vs. Owen Howard.
    Suffolk.
    March 21.
    May 4, 1877.
    Lord & Soule, JJ., absent.
    A city owning a passageway, a lot on one side of it and another lot in the rear, con veyed to B. the lot on the side, bounding it on the “ passageway reserved by said city exclusively for a back passageway ” to the lot in the rear, “ or for any other purpose said city may choose to appropriate said passageway to.” The deed also gave the grantee the right to build over the passageway, leaving it five feet wide in the clear. The city then quitclaimed to A., the owner of the land on the other side of the passageway, the right to pass over it, describing it as five feet wide, aa appurtenant to his estate; and afterwards conveyed to B. the lot in the rear, and quitclaimed to him all the rights of the city in the passageway. Held, that A. could maintain a bill in equity against B. to restrain him from building over the passageway by placing a wall in it, whereby its width was made less than five feet, it appearing that the passageway could be built over without such wall, at an expense not much larger than by the mode proposed.
    A city may convey land by deed to a member of the city council and one of the commits e to which the matter was referred, if he does not take any part in the transaction officially, or, as agent of the city, convey to himself.
    Bill in equity, filed January 27, 1873, by the heirs of John C. Tu her, to restrain the defendant from building over a pas sage way, and from placing a wall in it, by which its width was diminished. Hearing before Morton, J., who reported the case or the consideration of the full court, in substance as follows :
    The plaintiffs own an estate fronting on Merrimac Street in Boston, and bounded on one side by the passageway in question. On May 25, 1835, the city of Boston, which then owned the land on the other side of the passageway, the passageway itself and a lot in the rear, on which was a school-house, conveyed the lot on the other side of the passageway to Loring, Floyd and Beal, the defendant’s grantors, by metes and bounds, two of which were as follows: “Thence southeasterly by said Merrimac Street ninety-three feet two inches to a passageway of five feet wide, reserved by said city exclusively for a back passageway to said school-house and lot, or for any other purpose said city may hereafter choose to appropriate said passageway to; thence southwesterly by said passageway of five feet wide sixty-three feet and four inches to a fence.” The deed also conveyed to the grantees the right “ to build over said passageway and any part of the same, leaving said passageway five feet wide in the clear, and not less than ten feet high from the level of said Merrimac Street.”
    In October, 1862, the committee on public buildings of the city of Boston was authorized by an order of the board of aider-men, concurred in by the common council and approved by the mayor, to grant a right in this passageway to the owner of the land on the east side thereof, for such consideration as the committee should approve. This order was referred by the committee to its chairman and superintendent with full powers, and on December 12, 1862, the city quitclaimed to John C. Tucker, his heirs and assigns, “ the right to pass and repass, in, upon and over a certain passageway, five feet wide and ten feet high,” being the passageway in question; “ the said right of passing and repassing is to be held and enjoyed by the said Tucker, his heirs and assigns, only as an appurtenance to his said estate abutting on the said passageway, and in common with the said city of Boston and others to whom the said city has heretofore granted or may grant a like right.”
    On January 27, 1873, the city of Boston conveyed to the defendant the school-house lot above referred to, bounding it in part “ by a five foot passageway leading to Merrimac Street, and released and quitclaimed to him, his heirs and assigns, “ all the right, title and interest of the said city, in and to the five foot passageway above mentioned, but without any covenants of warranty whatever as to said right, title and interest.”
    It appeared in evidence that the passageway was built over by Loring, Beal and Floyd from Merrimac Street for about forty feet towards the rear; that afterwards the defendant, being about to build an L on the rear of the existing house on Merrimac Street, commenced building over the rear part of the passageway, which till then had remained uncovered, and separated by a fence from the plaintiffs’ estate, with a gate or door therein opening into their estate; that in so doing he took down this fence, and, to support the L, placed in and upon the passageway a wall twenty inches thick, with a solid stone foundation under ground, supported by piles, leaving a covered passageway about ten feet high, with a door or gate in the wall to the plaintiffs’ estate; that he also placed a gate in the passageway above the gate or door to the plaintiffs’ estate, and had since kept it closed; and that, by building the wall, he had narrowed the passageway to less than five feet; that the wall had been commenced by the defendant before this bill was filed, but was completed after-wards ; that the plaintiffs found that the defendant was encroaching upon the passageway, and told him that he would narrow it by the wall; and that the defendant stopped for two or three days, and then proceeded with it, and that the plaintiffs thereupon brought this bill.
    George Snell, an architect for more than twenty years, testified that a building could have been erected over the passageway without building a wall on the plaintiffs’ side of the passageway, and produced a plan showing how it could be done; that such a wall would be sound, safe and durable; that it was unusual to do it in this way; that there were precedents in engineering for it, but no precedents just like this; that it would, however, be practicable. He also testified that columns one foot in diameter might be put up in place of the wall; that this was quite common ; that the plan proposed by him, without columns or a wall, w told be expensive, but not very expensive, a few hundred dollars more ; and that he never knew of a house built in this way over a passageway.
    Henry M. Wightman, nineteen years in the city engineer’s office, testified that in his opinion Snell’s plan was a practicable one and feasible, and the expense not very disproportionate; that there would be no difficulty in putting up columns; and that it would only be a question of distributing the weight.
    
      There was also evidence admitted, de bene, the plaintiffs objecting, that John C. Tucker was a member of the city council and a member of the committee on public buildings at the time the release to him from the city of Boston was executed.
    The judge found that the defendant had violated the plaintiffs’ rights, by diminishing the width of the passageway, and reserved the case for the determination of the full court. If the finding was warranted, a decree was to be entered for the plaintiffs ; otherwise, the bill was to be dismissed.
    
      A. A. Ranney, for the plaintiffs.
    
      C. A. Welch, for the defendant.
    1. If the city could convey to John C. Tucker, all that passed by the deed was a right to pass over the passageway, and the plaintiffs are only entitled to a suitable and convenient right of passage. This right has not been interfered with. See Atkins v. Bordman, 2 Met. 457; Richardson v. Pond, 15 Gray, 387, 389.
    2. The right, conveyed to the defendant’s grantors, to build over the passageway, gave a right to support the building by a wall, that being the ordinary and usual way. The grant being for a valuable consideration, it is to be presumed that the grantor intended to convey, not only the thing specifically described, but everything necessary to the enjoyment of the thing granted. Atkins v. Bordman, 2 Met. 467, 468. If there is any inconsistency between the right to build over the passageway and the reservation of the five feet clear, the words must be taken most strongly against the grantor. They were intended to protect the rights of the owner of the fee, and had nothing to do with the rights of those having merely an easement in the passageway.
    3. Under the right reserved in the deed to Boring and others, the city could only appropriate the land to its own use as owner of the land in the rear, or to a public use. No right was reserved to grant an easement to a private person.
    - 4. It may also be questionable whether Tucker, being a member of the city government and one of the committee on public buildings, could, as such agent of the city, convey an interest to himself, or, if he could, that the city could not at any time avoid it; and the defendant stands in the same position as the city, having had all the rights of the city in the passageway released to him.
   Endicott, J.

The court is of opinion that there must be a decree for the plaintiffs on this report.

The city of Boston in 1835 conveyed to Loring and others the estate now owned by the defendant, bounding it on a passageway five feet wide, reserved by the city for a way to its schoolhouse, and for any other purposes for which it might see fit to appropriate it. The deed conveyed to the grantees the right to build over this passageway or any part of it, leaving it “ five feet wide in the clear and not less than ten feet high.” The language of the deed is explicit. The width of the way is exactly given, and the right to build over it must be exercised in such manner as to leave the passageway five feet wide in the clear. In other words, the passageway reserved by the city is not to be narrowed or obstructed by reason of the structure which the grantees or their assigns may erect over it. The case does not present the question what would be the rights of the parties if the defendant could not cover the passageway without support from below within the way itself. The evidence reported shows that it is practicable to do so, at no very disproportionate expense, without such suppoi’t.

Nor do we find anything, in the deed of the city to Loring and others, which prevented the city from conveying an easement in this way to John C. Tucker, as appurtenant to his adjoining land, in common with the city and other persons. The fact that Tucker was at the time of . the conveyance to him a member of the city council, and one of the committee on public buildings, does not invalidate his deed. It does not appear that he took any part in the transaction officially, or that, as agent for the city, he conveyed to himself. The city afterwards conveyed its right, title and interest in the passageway to Howard, but he took his title subject to the easement previously conveyed to Tucker.

The finding that the defendant did violate the rights of the plaintiffs by the erection of the wall in the passageway was therefore proper. No question is reserved as to the form of the decree; that must be determined before a single judge.

Decree for the plaintiffs.  