Martin v. Bigelow

Martin v. Bigelow - PAGE | 1 Fifty Associates vs Frederic...

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Unformatted text preview: { PAGE | 1 } Fifty Associates vs. Frederic Tudor. [NO NUMBER IN ORIGINAL] SUPREME COURT OF MASSACHUSETTS, SUFFOLK AND NANTUCKET 72 Mass. 255; 1856 Mass. LEXIS 247; 6 Gray 255 March, 1856, Decided PRIOR HISTORY: [**1] Action of tort for breaking and entering the plaintiffs' close in Boston, and throwing down a wall. The defendant justified, on the ground that the wall obstructed the light and air to certain windows, which he had used and enjoyed for twenty years, in his building, on the close adjoining the plaintiffs'. At the trial in the court of common pleas, before Byington, J. the defendant introduced evidence tending to show that his building, with all said windows in it, had been standing for twenty years before the passage of the St. of 1852, c. 144, (which declares that no person shall, by the mere continuance of windows overlooking the land of another, acquire any easements of light or air;) and that the plaintiffs' wall was erected by them since the passage of that statute, and darkened the windows in the cellar and two windows in the first story of the defendant's building, which windows were about ten feet from the division line between the two closes. The plaintiffs requested the judge to instruct the jury that "the defendant could not acquire a right of light and air through said windows by the mere use of the same for twenty years; but that there must have been some use of [**2] the same, adverse to the rights of the plaintiffs, and for which the plaintiffs had a legal remedy, or said use must have been accompanied by some claim or assertion of right;" that, "if the defendant placed said windows in the wall of his own house, situate ten feet within his side of the division line between said closes, he could not acquire a right of light and air over the plaintiffs' close through the mere use of said windows for twenty years;" that "the fact that the defendant placed said windows ten feet within his said line was an admission that he claimed no right of light and air beyond his own line;" and "that the defendant must prove that the plaintiffs had some actual knowledge of the existence of said windows." But the judge refused to give any of these instructions, or to allow the plaintiffs to prove that they had never granted to the defendant the right claimed, and had never received any notice from the defendant that he claimed such a right; and instructed the jury that, "if the defendant owned and occupied the building for twenty years previously to the erection of the wall by the plaintiffs, and during all that time had quiet and uninterrupted possession [**3] of his lights in his building, and of the air, over and adjoining the premises of the plaintiffs, the presumption of law is that there was a grant of a right so to enjoy such light and air to the defendant by the plaintiffs, the owners of the adjoining premises; and on proof of such facts, and that the plaintiffs deprived him thereof, it would be the duty of the jury to find in favor of the defendant;" and, "as to the plaintiffs' claim that there must be {...
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This note was uploaded on 04/08/2008 for the course HIST 327 taught by Professor Hamm during the Spring '08 term at SUNY Albany.

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Martin v. Bigelow - PAGE | 1 Fifty Associates vs Frederic...

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