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effectually, in his profession. The language of Parke, B., in Southee v. Denny, 1 Ex. 196, 202, 203, supports this view. . In the opinion of a majority of the court, the words might therefore properly be found by the jury to have been spoken of the plaintiff in respect to his profession as a physician, and they might properly be found to be defamatory and actionable without an averment of special damages. See, as supporting this result, Sanderson v. Caldwell, 45 N. Y. 398, 405, 6 Am. Rep. 105, where the court formulates a rule which would include this case.
The minor questions in the case may be briefly disposed of.
If an averment of special damages was necessary, or if the words set forth were actionable per se, in either case the evidence of special damage was properly received.
The evidence of what the defendant said after the commencement of the action was competent upon the question of malice: Beals v. Thompson, 149 Mass. 405.
The judge properly refused to instruct the jury that the plaintiff could not recover by reason of a variance. Taking the testimony of the various witnesses, there was, from some one or other of them, evidence substantially in support of all the words set forth in the declaration.
It was competent for the jury to find that the defendant spoke the words maliciously for the purpose of injuring the plaintiff as a physician.
SLANDER — WORDS SLANDEROUS PER SE. - As to what words are slander ous per se, see Hess v. Sparks, 44 Kan, 465, ante, page 300, and note.
SLANDER — DAMAGES. - In actions of slander, where the words are not actionable per se, the plaintiff must allege and prove special damagea: Nema man v. Stein, 75 Mich. 402; 13 Am. St. Rep. 447, and nota
LADD v. CITY OF Boston.
(151 MASSACHUSETTS, 586.] BASEMENTS - RIGHT TO HAVE LAND BUILT UPON TOR THI BENTIT OF
LIGHT AND AIR to neighboring land may by deed be made an easement,
and may be created by words of covenant as well as by words of grante RASEMENTS - IN ORDER TO ATTACH AN EASEMENT TO A DOMINANT
ESTATE, it is not necessary that it shall be created at the moment when either the dominant or the servient estate is created, if the purport of
the deed is to create an easement for the benefit of the dominant estate. EASEMENTS RESTRICTING THE USE OF LANDS. - If the owners of lots front
ing upon a square of land in a city mutually agree that certain places, avenues, and passage-ways, as laid out upon a plat, shall remain open as an appartenant to several lots, and that no building shall be erected upon certain lots within ten feet of the front line thereof, unless a majority of the owners shall so elect, nor shall any building extend above a speci. fied height, such agreement entitles each of the owners to an ease ment, and if a city, in the exercise of the right of eminent domain, takes a lot which is subject to such easement in favor of an owner of another lot, it must compensate him for the loss of his easement
Petition to superior court, claiming that petitioner, on April 20, 1886, was the owner of land known as lot 51, together with a dwelling thereon, which lot formerly belonged to J. P. Thorndyke, and was shown on a plan of lots, dated October 6, 1835, situate on Pemberton Square, formerly known as Phillips Place, in Boston, and that petitioner was also, as the owner of such lot, entitled to rights and easements in lots 39, 40, and 41 of division 4, and lots 56, 57, 58, and 59 of division 6, and a six-foot passage-way shown on the same plan; that by an indenture of the same date of the said plan, duly recorded, and by another indenture, dated November 7, 1837, also recorded, an agreement was made “between Patrick T. Jackson, his heirs and assigns, and the owners of the balance of said sixty-four lots, their heirs and assigns, by which it was mutually agreed, in the strongest and most uniistakable terms, that the place, avenues, and passage-ways as laid out on said plan shall forever remain open and unencumbered as appurtenant to the several lots, to be used for all purposes requisite for the usual full enjoyment of such dwelling and warehouses and their appurtenances as shall be erected thereon, conformably to the provisions therein contained, and that no building shall be erected upon lots comprised in the fourth division within ten feet from the line thereof on Phillips Place, unless a majority of the owners shall elect to have swelled or circular fronts, in which case the swelled or circu
AX, ST. REP., VOL. XXI. – 31
lar portions may extend to any distance within seven feet of said line; nor shall any building extend westerly beyond sixty-five feet from said line at a greater height than ten feet above the level of the six-foot passage-way in the rear of and against the said lots respectively; and the fact is, that said owners, by a majority or otherwise, did not elect to have swelled or circular fronts; and the indentures aforesaid further provide that no building shall be erected upon the lots comprised in division numbered 7 extending easterly beyond the distance of sixty-six feet from Somerset Street at such a height that the eaves shall be above the floor of the first or principal story, excepting upon lot numbered 65; provided, however, that if, at any time thereafter, the owners of the said lots, or a majority of three fourths parts of them, shall consent to the waiver or discharge of any or either of the coliditions abovementioned, then the same shall cease and determine upon the execution of a sealed instrument declaring such assent, and the recording of the same in the registry of deeds, and the several lots shall thenceforth be held by their respective owners free and released from all the conditions so intended to be released and discharged; and further, that a breach of any of the conditions above specified shall not work a forfeiture of the estate, but shall give to the said Jackson, his heirs or assigns, or the owner of any lot interested in such breach, full power and authority to enter upon the lot, with servants and instruments, and take down and remove any building that may have been erected in violation of such condition." The petition also alleged that no release of the abovementioned conditions bad been made by the owners of lots; that the commissioners for the erection of a new court-house in Boston had taken lots 39 to 41 inclusive, and lots 56 to 59 inclusive, and the six-foot passage-way, together with the easements and privileges of the petitioner; that the street commissioners had never allowed or paid petitioner any damages occasioned to him by such taking; that petitioner was ago grieved “that his easements and privileges of light and air, and especially his view into the open area of Pemberton Square, and also an easement reserved to him by said indenture, shall have been taken away and destroyed and no compenbation allowed him therefor”; and he asked for a jury to assess his damages. The respondent moved to dismiss the petition, on the ground that the petition did not show any taking of any estate, property, or land of the petitioner for which he
was entitled to compensation from the city. The motion was granted, and the petitioner appealed. The following plan shows a portion of the plan referred to, so far as it is material to the present controversy:
I. R. Clark, for the petitioner.
HOLMES, J. The ground of the motion to dismiss the petition is, that the petition does not show any taking of any estate of the petitioner for which the city of Boston is liable, and that is the only question upon which we pass. It may be that a separate petition ought to have been filed for each estate taken, but upon that we express no opinion at this stage. Neither do we express any opinion on the question of parties, or upon the effect of a previous petition having been filed in respect of some of the same lots, if such be the fact.
It appears that the petitioner's predecessor in title and the then owners of the land taken by the city for the new court bouse were parties to an indenture whereby it was covenanted, among other things, that the land in front of the petitioner's lot and just across the street should not be built upon beyond a certain line on what is now Pemberton Square, and should be subject to some other similar negative restrictions. This land the city has taken free of these restrictions. If the plaintiff has an easement, the city must pay for it.
The right to have land not built upon, for the benefit of the light, air, etc., of neighboring land, may be made an easement, within reasonable limits, by deed: Brooks v. Reynolds, 106 Mass. 31. And such an easement may be created by words of covenant, as well as by words of grant: Hogan v. Barry, 143 Mass. 538. In order to attach the easement to the dominant estate, it is not necessary that it should be created at the moment when either the dominant or the servient estate is conveyed, if the purport of the deed is to create an easement for the benefit of the dominant estate: Louisville and Nashrille R. R. Co. v. Koelle, 104 Ill. 455; Wetherell v. Brobst, 23 Iowa, 586, 591; Gale on Easements, 6th ed., 59. Of course it does not matter that by the same deed numerous parties grant similar or reciprocal easements over, or in favor of, many parcels of land: Tobey v. Moore, 130 Mass. 448; Beals v. Case, 138 Mass. 138, 140. Neither is it material that the indenture provides that a majority of three fourths of the owners of the lots concerned may terminate the rights which it creates.
If, then, we are to assume that at the time of the indenture the owner of the petitioner's lot was a different person from the owner of the opposite lot taken by the city, we have a plain case of a grant of easements to have certain parts of the latter not built upon, or not built upon above a certain height. Such would seem to have been the fact from the plan, referred to in the petition, which was exhibited to us at the argument, and from the petition itself, which states that the petitioner's right acquired under the indenture was an easement.
It follows that we need not consider the argument for the city, that owners of purely equitable restrictions are not entitled to maintain a petition of this nature.
COVENANTS RESTRICTING THE USE OF LAND. — Among the numerous attempts at a comprehensive stateinent of the legal doctrine on this subject, wo inay quote that of Professor Washburn: “It is now generally held that when land is divided up by the owner into numerous lots, and sold, and in every deed