George W. Cartwright, Appellant, v. Thomas Maplesden, Respondent

George W. Cartwright, Appellant, v. Thomas Maplesden, Respondent. (Argued May 30, 1873; decided June 10, 1873.) 1 This was an action to recover damages for an alleged wrongful obstruction, by a fence and other erections, of-a roadway in which plaintiff claimed a right, and to compel the removal of such obstructions. One Edwards, the common source of title, conveyed first to defendant, bounding him upon a roadway or street. Defendant’s deed also contained a covenant that the grantee should keep open as a sidewalk, for the use of the adjoining land, a strip fifteen feet wide of the premises conveyed, bordering upon said roadway. Edwards conveyed the residue of his premises to plaintiff with a right to the free and unobstructed use of said roadway; but prior to such conveyance the strip of land had been fenced in and a portion of it built, upon by defendant with the knowledge and assent of Edwards. These were the obstructions complained of. Held, that the permission to make the erections, they being inconsistent with the continuance of the easement, worked an extinguishment thereof; that plaintiff could not recall the right, or claim any benefit under the covenant by which it was granted, and had therefore no cause of action. Francis Larkin for the appellant. C. Frost for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur. Judgment affirmed.