Randall v. Sanderson. tiffs' wooden dwelling-house, and extending 19 feet back from Pleasant Street, and its northeasterly wall extending 41 feet along Pleasant Street; on the westerly end of this house is Fayette Street, beyond the base or wall line; and the house stands at an angle and not in a parallel line with that street, and has a door of entrance on that street. The sidewalk of Fayette Street comes up to the northwesterly end of this house; and the northeasterly and northwesterly boundaries of the lot, if produced in straight lines, would intersect at a point 1 feet beyond. There was no other evidence of the true boundary of the lot, or of Fayette Street at this corner. The southeasterly wall of this brick house is not a party wall, and is no part of the.wall of the plaintiffs' house. At or soon after the time of building this house, the owner built a shed in the rear one story high, extending backwards on a line with the southeasterly wall of his house to the end of the plaintiffs' wooden house. This shed has always been plastered and papered inside, against the wall of the plaintiffs' wooden house, and the timbers of the floor of this shed were supported by the brick wall forming the foundation of this house. This brick house and shed have continued in the same condition ever since their erection. The defendants offered no further evidence of the claim of title made by themselves or their grantors. "The plaintiffs' wooden dwelling-house originally had a roof sloping each way, and a gutter all around the eaves, extending outwards about a foot and a half. In 1847, William Randall put an additional roof over this house, so constructed as to throw much of the water, which had previously flowed off on the southwest side, towards the northwest; and this new roof projected over and beyond the gutter about three inches, from Pleasant Street to the rear line of the defendant's brick house, leaving the rest of the gutter on that side of the plaintiffs' wooden house as it had always been. William Randall and the plaintiffs have occupied this house ever since he finished it, and have alway's claimed the right to have the water flow off by the eaves and gutter on that side, and have always claimed their northwesterly line to be without or in the outer edge of the gutter ›r projection, and in a straight line through its whole length. Randall v. Sanderson. "The plaintiffs' wooden house has always had three windows, one over the other, which are the only means of lighting the rooms in which they are placed, looking toward the northwest over the lands now owned and occupied by the defendants. "The defendants are about erecting a high brick building where their brick house and shed have stood, extending the whole depth of the plaintiffs' wooden dwelling-house, and almost or quite close to it, which, if carried directly upwards, will wholly obstruct the light of these windows, and cut off some part of the plaintiffs' gutter and eaves. 66 Upon these facts I was of opinion and decreed, that the plaintiffs 'did not own any part of the land covered by the southeasterly wall of the defendants' brick house, or of the land in the rear thereof, lying northwesterly of the northwesterly wall of the plaintiffs' wooden house; and were not entitled to any right of light or air over the defendants' land, nor to an injunction against stopping up the windows; but that the plaintiffs were entitled, by an adverse use of more than twenty years, to have the gutter and eaves of their wooden house remain as they now exist, and thereby to carry off and discharge the water from the roof; that the defendants should be enjoined against cutting off the plaintiffs' gutter and eaves, or interfering with such discharge of water; and that the case should be referred to a master, to ascertain and report to what extent the building now being erected by the defendants would infringe the plaintiffs' rights in these respects, and in what mode it should be constructed to secure those rights. The plaintiffs appealed from this decree." A. A. Ranney & W. E. L. Dillaway, for the plaintiffs. MORTON, J. The estates of the plaintiffs and defendants in 1824 both belonged to the eight heirs of Lemuel Packard, Jr. The brick house and shed of the defendants and the wooden dwelling-house of the plaintiffs had then been built many years. On April 1, 1824, the eight heirs conveyed to Samuel Sprague the land now claimed by the defendants, together with "the dwelling-house and all other buildings standing on said land," and Sprague and his grantees have continuously occupied the estate conveyed since that time. Randall v. Sanderson. On the same day six of the heirs conveyed to the other two heirs, Arza and David Packard, the land claimed by the plaintiffs, together" with all the buildings standing thereon," and this estate has been since occupied by the plaintiffs and their grantors. The presumption is strong that the dividing line between the two estates intended to be described in the deeds is the same as the line upon which the buildings were built. But however this may be, the exclusive and adverse occupation by each party upon his side of the line of the buildings would give him a title by prescription at the end of twenty years. Owing to the uncertainty as to the exact boundaries of Pleasant and Fayette Streets, it is probably impossible to ascertain whether these two lines exactly correspond. But this is immaterial. The defendants and their grantors have occupied up to the line claimed by the defendants, adversely and exclusively, since 1824. This gave them a title to the soil by prescription after the lapse of twenty years. The fact that the plaintiffs' eaves or gutter projected over the defendants' line, as stated in the report, would not prevent their acquiring a title by prescription. Their occupation of the soil was exclusive, adverse and uninterrupted. It was a question of fact whether the plaintiffs by the projection of their eaves gained an easement by prescription, and no appeal was taken from the finding of the presiding justice upon this question. Carbrey v. Willis, 7 Allen, 364. The ruling that the plaintiffs were not entitled to any right of light and air over the defendants' land, was correct. It is the established law, in this Commonwealth, that an easement of light and air cannot be acquired by prescription. Rogers v. Sawin, 10 Gray, 376. Carrig v. Dee, 14 Gray, 583. Richardson ▼. Pond, 15 Gray, 387. The plaintiffs admit this, but claim that the right of light and air was granted by the deed of the heirs of Lemuel Packard, Jr., to their grantors. We do not think that this claim can, upon the facts of this case, be sustained. As before stated, on April 1, 1824, the two estates of the plaintiffs and the defendants were both owned by the eight heirs of Lemuel Packard, Jr. On that day the eight heirs conveyed to Samuel Sprague the estate now Randall v. Sanderson. held by the defendants, by a warranty deed, containing a covenant that the premises were free of all incumbrances. By a deed of the same date six of the heirs conveyed to the other two, Arza and David Packard, the estate now held by the plaintiffs. These two deeds were acknowledged on the same day, before the same magistrate, and recorded on the same day. There is nothing to indicate that the deed to Arza and David Packard was prior to the other, and it must be assumed that the two deeds were simultaneously executed and delivered, and are to be construed as parts of one transaction. The question whether the deed to Arza and David Packard granted an easement of light and air over the other estate, is a question of the intention of the parties. No such easement is expressly granted in the deed; and when we consider that the grantees and the grantors in that deed are joint grantors in the deed to Sprague, and therein expressly covenant that the estate conveyed is free of all incumbrances, it seems clear that it was not the intention of the parties to create an incumbrance, by granting, by a simultaneous act, an easement of light and air in favor of the adjoining estate. There having been a unity of title up to the time of these conveyances, no easement existed which had become annexed to the plaintiffs' estate. The windows existing in the house sold to Arza and David, though convenient, were not necessary to the enjoyment of the estate granted; and we think it clear that it was not the intention of the parties to these deeds to create a servitude upon one estate in favor of the other. We are of opinion, therefore, that the plaintiffs have shown no easement of light and air over the defendants' land. Collier v. Pierce, 7 Gray, 18. Carbrey v. Willis, 7 Allen, 364, and cases cited. Johnson v. Jordan, 2 Met. 234. Decree affirmed. Davis v. Galloupe. CHARLES DAVIS & another vs. CHARLES W. GALLOUPE. The plaintiffs, stone cutters, agreed in writing with the defendant to furnish stone for his building according to the plans and specifications of an architect, and to do all the fitting and rebating necessary. Wooden patterns were necessary for cutting the stone according to the plans, and the plaintiffs procured and paid for them, without asking the defendant or the architect to furnish them. Held, in an action to recover the amount paid for these patterns, that evidence of a usage for stone cutters, in cutting stone for a building, to procure such patterrs and recover the cost from the owner of the building, was inadmissible; and that the plaintiffs could not recover. CONTRACT by Charles Davis and George W. Goodrich, on an account annexed. The defendant admitted his liability on all the items, except on one of "Cash paid for patterns, $170.35." At the trial in the Superior Court, before Dewey, J., it ap peared that the plaintiffs furnished the granite for the defendant's building under the following contract, signed by the parties: "This agreement, made the twenty-second day of May 1869, by and between Charles W. Galloupe, of the first part, and Davis and Goodrich, granite dealers, of the second part, witnesseth, that whereas, the party of the first part is about to erect a granite front and side building on his estate, No. 562 Washington Street, and the party of the second part are desirous of furnishing, cutting and delivering the granite required for the same; now it is hereby mutually understood and agreed by and between the aforesaid parties that the party of the second part may furnish all the granite required to erect, finish and complete the front and side of said building, according to the plans and specifications furnished by N. J. Bradlee, architect, and which plans and specifications are hereby annexed, signed and made a part of this agreement, which granite is understood and agreed to be of Concord for the front on Washington Street and return of pavilion on Harvard Street, with two belts of the same on Harvard Street, and all the other granite required to be of Rockport, and all the granite is to be clear and free from saps and flaws of any kind, fine hammered and dabbed, with lewis and clamp holes cut in each stone, and delivered on the premises as fast as the architect |