O'Brien v. Flynn

In trespass, the plaintiff must recover on the strength of his own title or possession-, and we are at a loss to see how the plaintiff has ever gained any exclusive right to the use of the strip of land adjoining his lot. At the time when the whole of the Bartlett land was divided into building lots, and a plan thereof was made and recorded, a strip of land was left open adjoining the lots now owned by the plaintiff and the defendant, as if for a passage, though it was not called so on the plan; and when the owners conveyed the two lots which the plaintiff now owns, adjoining said strip, no mention whatever was made of the strip of land, but the land conveyed was merely described as “ lots number five and six on a plan,” etc. Now if this gave a right to use the strip of land for a passage, it certainly gave no exclusive right so to use it; and the plaintiff has no right to complain of the defendant’s use of the strip of land for a passage, there being no obstruction to the plaintiff’s use of it as a passage. Since the plaintiff *199has no exclusive right in the strip of land, we do not have to consider the extent of the defendant’s right as against the owner of the fee. Judgment affirmed.