Commonwealth v. Killian.

senger on the train; that he pulled the bell rope; that the train was thereupon stopped; that there was following the said train another train; that the conductor of the first train was compelled to send back a man to flag the rear train to avoid a collision. It appeared that the defendant did not get off when he caused the train to be stopped; that he had paid his fare to a point beyond, and that he was warned by a fellow-passenger not to pull the rope.

The defendant offered no evidence in his own behalf, but requested the judge to instruct the jury "that no crime had been proved against him by the evidence; that the evidence was not sufficient to warrant a verdict against him; and that no crime or offense known to the laws of this commonwealth had been proved against him." But the judge declined so to rule, and instructed the jury "that if they found that the defendant pulled the bell-rope of the train as alleged in the indictment, that was an obstruction within the meaning and intent of the statute." The jury returned a verdict of guilty, and the defendant alleged exceptions.

J. O. Teele, for defendant.

C. R. Train, attorney-general, for Commonwealth.

COLT, J. Punishment is provided by the Gen. Stats., chap. 63, § 107, for whoever "obstructs any engine or carriage passing upon a railroad, or endangers the safety of persons conveyed in or upon the same, or aids or assists therein." The defendant is indicted for obstructing a train of cars by pulling the signal rope attached to a bell upon the engine, whereby the train was stopped and the safety of passengers endangered. There was evidence at the trial that the defendant was a passenger at the time of committing the offense charged, and that pulling the bell-rope was ordinarily used as a danger signal, and as notice to the engineer to stop the train. In the opinion of a majority of the court this evidence fails to prove a criminal obstruction of the train, within the reasonable meaning of the statute.

The law was not intended to apply to a case where the train is stopped by an engineer, or other person having control, in consequence of a false signal communicated in this manner by a passen. ger. That is a proper and a contemplated mode of stopping the

Pierce v. Dyer.

train, to be used in case of accident or necessity, not only by officers in charge, but by passengers; and the act, however improper, and whatever may be its motive, cannot be regarded as ordinarily or directly dangerous to any one. If the terms of the statute do not imply an actual physical obstruction, they at least require something more than the use of the agencies here employed.

The case of The Queen v. Hadfield, Law Rep., 1 C. C. 252, relied upon by the government, was under the English Stats. of 24 and 25 Vict., chap. 97, §§ 35, 36. The prisoner unlawfully altered some railway signals at a railway station. The alteration caused a train, which would have passed the station without slackening speed, to slacken speed and to come to nearly a stand; and another train going in the same direction and on the same rails was due at the station in half an hour. This was held by a divided court to be an obstruction within the meaning of section 36, which enacts that whosoever by any unlawful act, etc., obstructs any engine or carriage using any railway, shall be guilty of a misdemeanor. But section 35 of the same statute makes it felony to obstruct a train by certain unlawful acts there named, including the altering of signals, and it was thought that the acts specified were intended to be also included in section 36 by the phrase "any unlawful acts." The interpretation of our statute is not thus aided, and it cannot be thus enlarged. Exceptions sustained.

PIERCE V. DYER.

(109 Mass. 374.)

Action · easements and servitudes as to several tenements in a building — neglect of one owner to repair.

The owner of one part of a building has no action to recover damages at law for the willful neglect of the owner of the other part in permitting his part to become ruinous and fall into decay, whereby the plaintiff's part is injured.”

ACTION in tort by Drusilla Pierce and another against Benjamin H. Dyer. The first count of the declaration alleged "that the

*See Ottumway Lodge v. Lewis, 11 Am. Rep. 135.

Pierce v. Dyer.

plaintiffs are, and were prior to the year 1870 and the defendant's tenure herein referred to, owners of a dwelling-house situated in Truro, in this commonwealth, and the defendant has been, to wit, since the year 1862, owner and possessor of a house adjoining the house of the plaintiffs; that the two tenements were built as and designed for one dwelling-house by the owner thereof; that there is no partition wall between the said two tenements or parts of said dwelling-house, but they are separated only by an imaginary line passing through the rooms thereof; and that, since the defendant's ownership, the defendant, designing to harm the plaintiffs and their property, has injured and permitted to be injured and to decay his tenement, till it became ruinous, the roof, sides and interior thereof, whereby the plaintiff's said house has been greatly damaged, and the plaintiffs have been unable to keep the same in any repair, through the wrongful acts of this defendant." The second count was as follows: "And the plaintiffs further say, that they and the defendant are and were owners as aforesaid of two several tenements in the town of Truro aforesaid; that said tenements adjoin each other as aforesaid, and originally formed one dwelling-house, held by one and the same owner; and that the defendant has wrongfully suffered his house to remain out of repair and to decay, and has neglected and refused to repair the same, whereby the interior of the plaintiff's house became exposed to storms of rain and wind, and said house suffered great damage and injury, the plaintiffs' windows and doors were shattered, the walls and ceilings damaged, the timbers of said house and flooring decayed, and said house has been otherwise greatly damaged.' The defendant demurred, on the ground "that none of the acts or omissions charged upon him in said declaration can be the basis of an action by the plaintiffs against him." The superior court sustained the demurrer, and the plaintiffs appealed.

G. A. King, for defendant.

L. Knowles, Jr., for plaintiffs.

COLT, J. The plaintiffs' action, in both counts, is founded on the alleged right of the owner of one part of a dwelling-house to recover damages at law for the willful neglect of the other owner in permitting his part to become ruinous and fall into decay, whereby

Pierce v. Dyer.

the plaintiffs' house was damaged. The allegation of the first count, that the defendant "injured and permitted to be injured and to decay his tenement, till it became ruinous," must be construed to charge willful neglect to repair, and does not allege with sufficient distinctness any positive act of destruction or injury by the defendant. There is a wide difference between injuries which arise from negligence, and those which result from positive misfeasance; and if the latter were relied on as a ground of action, they should have been distinctly alleged. The second count plainly charges only wrongful neglect and refusal to repair.

It is to be assumed as settled, that, where two or more houses, so constructed as to require mutual support, are conveyed to different owners, or where separate portions of one dwelling become vested in different owners, a right of support, as incident to the property, passes by the conveyance to each grantee, unless excluded by the terms of the grant. Richards v. Rose, 9 Exch. 218. Easements of this description are acquired by grant; but, in construing the conveyance, it is to be presumed that the parties intended to preserve the obviously existing relations and dependencies of the estate, and all those incidents necessary to the present enjoyment of the thing granted are held to pass. There is an obligation upon each adjacent proprietor in favor of the other, beyond what is implied in the maxim which requires every one to use his own so as not to injure his neighbor. The exclusive dominion of each is so far qualified, that neither can take away the support of the other, however prudent and careful on his part the act may be.

It is argued that the right of support and shelter, to which the purchaser of one part of a dwelling thus becomes entitled, and which may not be taken away by any wrongful act of the other owner, imposes also the active duty to repair the premises and maintain the existing condition of things.

The nature, extent, and duration of the servitudes, thus imposed by implication upon each adjoining estate, are not well defined in the reported cases. As a restriction upon the free use of property conveyed in fee, the right is not to be extended beyond apparent necessity. Upon principle, the extent of the burden imposed must be limited by the presumed intention of the parties, having regard to the relations and dependencies of the two estates, and the changes which may reasonably be expected to take place. It is to be considered that the necessity which lies at

Pierce v. Dyer.

the foundation of the right arises from the existing relations of artificial structures, for the time being constituting part of the freehold, but liable to be destroyed by the action of the elements or by mere lapse of time. When thus destroyed, it is fair to presume that the parties intend, in the absence of any agreement, that the easement shall end with the necessity which created it. There can be by implication no mutual easement of perpetual support, applicable to future structures.

In Sherred v. Cisco, 4 Sandf. 480, it was held that, where a party wall was destroyed by fire, the law would imply no obligation on the adjoining owners to join in rebuilding a new wall, where there was no agreement so to do, the parties being remitted to their original unqualified title up to the division line. And DENIO, C. J., in speaking of that case, declares that he sees no solid distinction between a total destruction of the wall and buildings, and a state of things which would require the whole to be rebuilt from the foundation; that in either case there is great force in saying that the mutual easements have become inapplicable. Partridge v. Gilbert, 15 N. Y. 601; Kerr on Injunctions, 376.

In Cheeseborough v. Green, 10 Conn. 318, which was an action on the case, brought by the owner of the lower part of a store against the owner of the upper part and roof, to recover damages for suffering the roof to be out of repair, the court held that the action could not be sustained, suggesting that the plaintiff could have relief only in a court of chancery.

The civil law recognizes the existence of an easement to compel the owner of the servient tenement to repair, as distinguished from the ordinary easement of support; but the additional obligation to repair can only arise from express stipulation, or by proof of a prescriptive right to the easement of repair as well as support. Gale on Easements (4th ed.), 312.

The plaintiffs' declaration in this case does not allege as a fact, in direct terms, that they were entitled to have their part of the house supported or protected by the defendants' part, or that any easement of that description existed in their favor. But, giving it the most favorable construction, and assuming that title to such support can be inferred, as matter of law, from the allegations contained in it, yet, as we have seen, the obligation to repair cannot be so inferred, and without such obligation an action cannot be maintained for mere refusal and neglect. Peyton v. London, 9 B. & C. 725. Demurrer sustained.