Baldwin v. Boston & M.R.r.
| Decision Date | 02 April 1902 |
| Citation | 181 Mass. 166,63 N.E. 428 |
| Parties | BALDWIN v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Samuel C. Darling, for plaintiff.
Edgar J. Rich, for defendant.
1. The court found that the grade of the path from the gate in the plaintiff's fence to the railroad station was steep; that in the winter it was somewhat difficult to use it, when icy without a railing; and that from the time when the path was first used there was a railing there not less than 46 inches in height. We cannot say that, on the evidence the finding was wrong. Since, therefore, the railing was reasonably necessary to the convenient use of the path in the winter season, and was continually kept there, the easement acquired was not only to use the path, but to use it with the railing. The right to the maintenance of the railing was under the circumstances, a part of the easement.
2. The more difficult question is as to the extent of the easement. The lot of the plaintiff had a frontage upon the street of 112 1/2 feet, extended in the rear the same distance on the line of the railroad, and had a depth of about 188 feet. Prior to 1895 there were upon it only two buildings,--a dwelling house, which was occupied by one family, and a stable; and it may be inferred that the whole lot was used in connection with these buildings. Recently two houses, each having two tenements, were built on the lot,--one in 1895 and the other in 1897,--so that there are now upon it these three dwelling houses and a stable. The question is whether the right of way is such that it may be used by the tenants of the new houses. It is a way by prescription. In the case of a way by grant, the nature and extent of the easement are determined, of course, by the language of the grant, construed in the light of the attending circumstances. In the case of a way by prescription, however, there is no language to guide us, and resort must be had to some other test. Since prescription presupposes a grant which is lost, the proof of the nature of the grant is to be found in use; and it is frequently stated, in some form of language, that the nature of the right acquired by use is measured and limited by the nature of the actual use. Thus it is said by Morton, J., in Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 7 Pick. 344, 349, 'The right presumed to be granted is coextensive with the use;' by Bigelow, J., in Atwater v. Bodfish, 11 Gray, 150, 152, 'It must be limited to the use for which it is shown by the evidence to have been originally designed;' and in Richardson v. Pond, 15 Gray, 387, 390, 'The common and ordinary use which establishes the right also limits and qualifies it;' and by Finch, J., in American Bank Note Co. v. New York El. R. Co., 129 N.Y. 252, 266, 29 N.E. 302, 305, 'The right derived from user can never outrun or exceed the user in which it had its origin.' It is plain that, if the doctrine is to be taken strictly, then the right must be confined to the very persons who have passed over the way; and in the case of a carriage way, as stated by Parke, B., in Cowling v. Higginson, 4 Mees. & W. 245, the right would 'be confined to the identical carriages that have been previously used upon the road, and would not warrant even the slightest alteration in the carriage, or the loading, or the purpose for which it was used.' No one would contend for so strict a construction, and the truth is, as stated by the same judge in the same case, that 'one must generalize to some extent.' As in the case of a grant the language is to be construed in the light of the circumstances, so in the case of prescription the use is to...
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