Where land is granted bounding upon a way, public or private, the question whether it extends to the side line or the center line of the way is a question of construction in each particular case, and depends upon the intent of the parties as expressed in the descriptive part of the deed, explained and illustrated by all the other parts of the conveyance, and by the localities to which it applies.
The grantor covenanted to the grantee, his heirs, and assigns, should have the use and benefit of one other passage way (referring to the one in question), of nine feet in width, communicating with the one aforementioned and situate as aforesaid between the land herein conveyed and house. The title over the said grant now belongs to the defendant, and on the strength thereof, took down a house and built a new one.
Is the “use and benefit” granted merely an easement?
The court held that this grant of "the use and benefit" of a passage way imported only the grant of an easement. It had an equal application to all the parts of the nine feet in width. The words which followed restrained the grant from being exclusive, and declared that it was to be in common with the grantor, his tenants, heirs, and assigns. They did not import a reservation of a right of way over land of which the fee was granted. The court held that the grantees of an easement were limited to the use granted. They were liable to an action for any unauthorized use. The court held that an erection of a bay-window over the soil was a tort for which an action could be instituted, though the damages could be merely nominal, for it invaded plaintiffs' right.