Brayden v. New York, N.H. & H.R. Co.

• Decision Date: 23 November 1898
• Citation: 172 Mass. 225,51 N.E. 1081
• Parties: BRAYDEN v. NEW YORK, N.H. & H.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 225

51 N.E. 1081

BRAYDEN v. NEW YORK, N.H. & H.R. CO.

Supreme Judicial Court of Massachusetts, Bristol.

November 23, 1898

COUNSEL

J.W. Cummings and E. Higginson, for plaintiff.

T.S Hall, for defendant.

OPINION

HOLMES J.

This is an action for personal injuries suffered by the plaintiff while crossing the defendant's track, in consequence of the explosion of a track torpedo. The plaintiff was traveling along a pathway which crossed the railroad, and which, he attempted to maintain, was a way by prescription. At the time of the accident there was an opening in the fence, through which the plaintiff passed; but it appeared by the testimony of all the witnesses, and was not disputed, that this opening had been obstructed within 20 years, although there was evidence that the obstructions were torn down soon after they were put up. At the trial the judge directed a verdict for the defendant, and the plaintiff excepted.

We are of opinion that such an assertion of right on the part of the railroad company was sufficient to prevent the gaining of a right of way. A landowner, in order to prevent that result is not required to battle successfully for his rights. It is enough if he asserts them to the other party by an overt act which, if the easement existed, would be a cause of action. Such an assertion interrupts the would-be dominant owner's impression of acquiescence, and the growth in his mind of a fixed association of ideas; or, if the principle of prescription be attributed solely to the acquiescence of the servient owner, it shows that the acquiescence was not a fact. Powell v. Bagg, 8 Gray, 441, 443; Weld v. Brooks, 152 Mass. 297, 306, 25 N.E. 719. There is no question here on the disputed point whether a merely verbal protest would have an equal effect. Washb. Easem. (4th Ed.) 112, 113; Jones, Easem. §§ 193, 194. We shall not consider even such cases as Connor v. Sullivan, 40 Conn. 26, where the overt act was stopped in its very beginning.

When this view was intimated by us at the argument, the counsel for the plaintiff argued that he had a right to go to the jury on the question whether the obstructions were put up by the railroad company. This seems to us plainly an afterthought, and without any fair foundation. It is true that the plaintiff's witnesses did not say in terms, as the defendant's witnesses did, that the railroad company put up the obstructions.

But their...