
    * Jerathmeel Clap & Al. versus Archibald M’Neil.
    If one grant land as bounded on a thirty feet street, with a privilege of passing in said tiiirty feet street, and, at the tune of the grant, the grantor had a building on other land of his which projected ten feet into the street, no action lies for the grantee for the continuance of such obstruction.
    Trespass on the case, in which the plaintiffs, claiming the use of a certain thirty feet street, complain against the defendant for obstructing a part of it, by continuing a certain shed upon it.
    The cause came before the Court on a case stated by the parties at the last October term in this county, in which it appears that the defendant was seised of three several parcels of land contiguous to each other, on one of which was a ropewalk, adjoining on a second parcel which he opened as a way, called a thirty feet street, but the same has never been established as a public way. On the side of this way, opposite to the ropewalk, was the third parcel of land. Adjoining to the ropewalk, and projecting from it ten feet over the said street, was the shed or fixture complained of, being about twenty feet in length, and leaving the street for that space but twenty feet in width. The defendant sold and conveyed to the plaintiffs, in fee simple, the' third parcel of land, bounding it on one side “ by said thirty feet street, with the privilege of passing in the said thirty feet streetEver since and long before the said sale the defendant has continued the said fixture to his ropewalk
    Upon these facts, it was agreed that, if the Court should be of opinion that the plaintiffs ought to recover, they should have judgment for nominal damages only, (no special damage having been suffered,) with full costs; otherwise the defendant should have judgment for his costs.
    
      Gorham for the plaintiffs.
    The defendant has granted to the plaintiffs a right of passing in a thirty feet street, which is of the same import as a street thirty feet wide throughout its whole length. [Parsons, C. J. If the street had been, in fact, at the date of the deed, but twenty feet wide, could the plaintiffs compel M’Neil to make it wider? or, if it had been more than thirty feet, would he have had a right to narrow it, or to encumber all but the thirty feet ?]
    The grant in the deed is equivalent to a covenant to give a passage thirty feet wide ; and the only difference between this grant and such a covenant is, that it gives a different remedy.
    
      * Fay, Jun., for the defendant.
    The intention of the [ *590 ] parties is to be considered in construing every grant. The defendant meant only to give the plaintiffs a right of passage in a certain way which then existed. The name of the “ thirty feet 
      
      street” is only matter of description, and was never intended to define the quantity or limits of the way, in which the right of passage was granted. If it had been the intention of the parties that a street thirty feet wide throughout should be opened, the plaintiffs would have required an express covenant to that effect.
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

The question submitted to us by the statement of facts agreed by the parties in this suit is, whether the plaintiffs can or cannot maintain their action. And it is our opinion that the action cannot be maintained.

It is agreed that the way remains now in the same state in which it was when the title of the plaintiffs to it commenced, the defendant having done nothing to alter or abridge it. The plaintiffs, therefore, cannot complain, unless the defendant has stipulated either to widen it, or to remove any obstructions then existing. In looking into the deed, we find no covenants of this kind ; the plaintiffs’ right to the way must depend wholly on the construction of that part of of the deed describing the estate conveyed. Among the bounds of the land sold, there are these words: “ then turning and running southerly by land of said M’Neil, seventy feet to a thirty feet street, then turning and running westerly by said thirty feet street fifty feet.” By these words the plaintiffs cannot <_.úim even a right of way in that street. But after the description of the close are added these words : “ with the privilege of passing in the said thirty feet street.” These words give the plaintiffs a right of way in that street, as it was then opened as a way, but cannot have the effect of a covenant by the defendant that the fixture to the ropewalk should be removed, so that the street, called a thirty feet street, should be every where thirty feet in width, or as a grant of any way, but in that street as it was then opened and used. On this construction the defendant must have judgment.  