
    David Hill versus Ralph Haskins et al.
    
    The plaintiff declared against the defendant for erecting a building on a strip of land, ** which ought forever to remain open for the accommodation of the estates of the parties,” and produced a deed of such strip reserving to the parties the privilege of passing over it “ for the sole purpose of repairing either of said estates ” ; and there was no averment that the plaintiff had been prevented from repairing his es tote, nor any evidence that he intended to repair, or that he had given notice to the plaintiff of any such intention. Held, that the declaration was not supported by the evidence.
    The plaintiff declared against the defendant for obstructing a triangular strip of land “ which ought forever to remain open for the accommodation of the adjoining estates of the parties,” but the evidence was of such an easement in a strip in the form of a parallelogram ; whereupon leave to amend was granted.
    Trespass on the case. The declaration alleged, that the plaintiff was the owner and was in possession of certain land and buildings, situate in Boston and bounded northerly on Essex street, which formerly belonged to John Trench, under whose title the plaintiff held ; that Trench was also owner of a triangular piece of land lying to the west of the plaintiff’s lot, being one hundred feet in length from south to north, fourteen feet wide at the south end, and coming to a point at the other on Essex street; that in 1788 Trench conveyed this triangular piece to Thomas Hill, under whose deed the defendants held; and that this piece “ ought to be and forever remain open for the accommodation of the plaintiff’s estate ” and the estate formerly of Thomas Hill on the opposite side of this triangular piece, and now belonging to and in possession of the defendants ; but that the defendants, in 1823, intending to deprive the plaintiff of the enjoyment of his land and buildings, erected a wall and building on the triangular piece, and thus appropriated it to their exclusive use, “ by means of which the plaintiff is annoyed and incommoded in the use, possession and enjoyment ” of his land and buildings.
    It appeared from the evidence, that the defendants had left a passage-way about four feet wide, of the whole length of the piece of land in question, next the plaintiff’s lot, for the common use of the plaintiff and themselves. The plaintiff produced Trench’s deed of the triangular piece to Thomas Hill, dated 1788, which contained a provision, “ always reserving to said Trench and the said Hill the privilege of passing to, or going on either of said lands for the sole purpose of repairing either of said estates,” meaning their two estates adjoining.
    The plaintiff also produced in evidence the deed, dated 1809, by which Thomas Hill conveyed his adjoining estate, and also the triangular piece, to Ralph Haskins and others ; and of which the defendants admitted themselves to be in possession. In this deed, at the conclusion, the grantor says ; “ It is to be understood, that that part of the above described land about four feet wide, conveyed to me by Trench, is forever to remain open for the accommodation of said Trench’s estate, and the estate above described.” These deeds presented the only material evidence relied upon by the parties.
    As the plaintiff had not alleged in his declaration, that he bad been prevented by any act of the defendants from repairing his estate, and had produced no evidence of his intention to repair, or of notice to the defendants that he wanted to repair, and had by the deed no right to use the land in question except for that purpose, Parker C. J. directed a nonsuit, subject to the opinion of the whole Court.
    S. jD. Parker and T. Fuller,
    
    for the plaintiff, insisted that the declaration set forth a sufficient cause of action. Whether the right of the plaintiff was attempted to be exercised or not, is immaterial. This invasion of his right, if not resisted, might by lapse of time become evidence in favor of the wrongdoer, and therefore the action well lies. Wells v. Wailing, 2 W. Bl. 1234; Hobson v. Todd, 4 T. B. 73; Weller v. Baker, 2 Wils. 422. The smallness of the damage is no ground for a nonsuit. Pindar v. Wadsworth, 2 East, 161; Prescott v. Trueman, 4 Mass. R. 627; Wyman v. Ballard, 12 Mass. R. 306.
    
      
      Mar lith
    
    
      
      Minot, for the defendants.
    
      March 23d.
    
   Parker C. J.

delivered the opinion of the Court. The nonsuit was rightly ordered, because the plaintiff’s proofs did not support his allegations. He counts upon a right to have a certain area, described in his declaration, at all times kept open and unincumbered. The deed under which he claims this right, to wit, from Trench to T. Hill, of the very land in which the easement is claimed, only reserves to the grantor and grantee the right to pass and repass over the same, in order to go upon either of the estates to which this adjoins, for the sole purpose of making repairs. The land thus granted with this reservation was in a triangular form, being fourteen feet at the base, and coming to a point on Essex street; and it is not averred that the right to pass and repass had been obstructed. This deed was made in 1788 ; but afterward, when Hill the grantee conveyed his estate, including this land, to the defendants, he provides, “ that that part of the land, about four feet wide, conveyed to him by Trench, is forever to remain open for the accommodation of both the estates.” This was in 1809. Without doubt, before this time, by compact between the owners of the several estates, the privilege before existing in the irregular area, had been exchanged for a regular passageway between the estates, in the form of a parallelogram four feet wide. Under this latter deed, the plaintiff may claim such an easement as he has described in his writ, that is, that it shall forever remain open and unincumbered ; but it is altogethei different from the locus in quo, in which the easement or privi lege exists, as described in his writ. The nonsuit was right, but the plaintiff may amend, on paying costs. 
      
       See Revised Stat. c. 100, § 21, 22; St. 1839, e. 151.
     