Way, Private. Easement, Extent of. Where the separate owners of two lots of land, with a strip of land ten feet wide owned in common by them lying between the two lots, established by agreement a right of way to be used in common over the whole strip and one of the owners with the consent of the other constructed a way over the whole strip for their common use, a successor in title of the other owner has no right to change the grade of any part of the way, and if he digs away the land on his side of the strip so as to leave the level of one half of the way a number of feet below the other half, he can be restrained in a suit in equity brought by the other owner from making any further encroachments on the way and can be ordered to restore the way in so far as possible to its original condition.
BRALEY, J.
The excavations and changes in grade which the defendant has made in the way, where he had only an easement of passage and the right to make reasonable repairs, having altered to the plaintiff's injury and damage the way as constructed by her with the consent of the defendant's predecessor in title, the cross bill was properly dismissed, and the decree restraining any further encroachments and ordering the defendant to restore the way in so far as possible to its original condition should be affirmed with costs. Killion v. Kelley, 120 Mass. 47. Lipsky v. Heller, 199 Mass. 310. Cornell-Andrews Smelting Co. v. Boston Providence Railroad, 202 Mass. 585. Kaatz v. Curtis, 215 Mass. 311. Downey v. H.P. Hood Sons, 203 Mass. 4, 11. Szathmary v. Boston Albany Railroad, 214 Mass. 42.
Ordered accordingly.