Carville v. Com.

• Decision Date: 16 October 1906
• Citation: 192 Mass. 570,78 N.E. 735
• Parties: CARVILLE v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 570

78 N.E. 735

CARVILLE v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Worcester.

October 16, 1906

COUNSEL

W. A. Gile, for petitioner.

Dana Malone, Atty. Gen., and W. P. Hall and Fred T. Field, Asst Attys. Gen., for the Commonwealth.

OPINION

KNOWLTON C.J.

The petitioner claims damages under St. 1895, c. 488 and the amendments thereto, for property taken by the metropolitan water board for the Waschusett reservoir. See Carville v Com., 189 Mass. 273, 75 N.E. 639. The instrument of taking was recorded on May 20, 1898. The property is an alleged right to use a pond on land formerly belonging to the petitioner's father, Daniel W. Carville, for the cutting of ice for the market. This land was taken by the instrument referred to, and it was also conveyed by Daniel W. Carville to the commonwealth by a duly executed deed. There was testimony that at one time Daniel W. Carville gave the petitioner oral permission to cut ice upon the pond, and that afterwards the petitioner erected ice houses, and sold ice from this pond in the market for a series of years. If the petitioner at any time had any right in the pond for which he was entitled to damages he acquired it by adverse use. There is a grave question whether the evidence would warrant a finding that the use was adverse, or other than permissive. But if we assume that the jury might have found in his favor on this point, his use of the pond had not continued so long as twenty years when the commonwealth took the property. The dam was not built until the autumn of 1878 nor the ice houses until 1879. His testimony to having worked by odd jobs on the land during the year before did not show an exclusive occupation, nor a use of the land for cutting and taking ice, such as would mark the beginning of an adverse claim as a foundation for the acquisition of a right to take ice.

But if we assume that the plaintiff had acquired a right, it was an easement in gross, or a profit a prendre, which was an interest in the real estate. Goodrich v. Burbank, 12 Allen, 459, 90 Am. Dec. 161; French v. Morris, 101 Mass. 68; Amidon v. Harris, 113 Mass. 59; Walker Ice Co. v. Amercan Steel Wire Co., 185 Mass. 463, 70 N.E. 937; Mayor, etc., of New York v. Law, 125 N.Y. 380, 26 N.E. 471; Poull v. Mockley, 33 Wis. 482. Damage suffered from the taking of real estate or an interest therein, could only be sued for under St. 1895, p. 573, c. 488, § 14, as amended by St. 1899...