Chase v. Perry

• Decision Date: 23 May 1882
• Citation: 132 Mass. 582
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Eber Chase v. Edward D. Perry & others

132 Mass. 582

Eber Chase v. Edward D. Perry & others

Supreme Court of Massachusetts

May 23, 1882

Argued October 26, 1881

Bristol. Tort for breaking and entering the plaintiff's close in Dighton, and trampling upon and destroying corn potatoes and grass growing thereon. The defendant Perry justified under a right of way by necessity across the plaintiff's land to and from his own land, and the other defendants justified as servants of Perry. Trial in the Superior Court, before Allen J., who allowed a bill of exceptions, in substance as follows:

A plan was introduced at the trial for the purpose of showing the relative position of the plaintiff's and Perry's lot the way as claimed by the defendants, and the highway.

Perry's lot was a salt marsh containing about an acre and a half. Its annual crop was from one to two tons; and a portion of the lot was woodland.

The defendants offered evidence tending to show the existence of an ancient cartway leading from Perry's premises across the plaintiff's premises in a certain line.

The defendants contended that the way had been anciently located in this line of travel, and that they were travelling in this way at the time of the alleged trespass; and offered evidence tending to show that the owners of the Perry lot and their servants and employees, from the earliest recollection of the witness down to the present time, had always passed and repassed between said highway and lot in this particular way whenever they had occasion to go or come from said lot; there was no evidence that any one of them ever went in any other direction.

The defendants' evidence tended to show that this way was used nearly every year by the owners of the Perry lot from about 1824 to 1834; and, after that, only occasionally, they generally selling the grass to different persons.

The plaintiff contended, that there was no ancient cartway; that if the defendants had any way by necessity through his lot, it had never been defined or located, and was only a right to go in such place and direction as the plaintiff might point out, whenever there was occasion to cross said premises; and he called several witnesses, who testified that they had for several years purchased the standing grass on Perry's lot, and that there was no visible cartway leading across the plaintiff's lot; and they were also permitted to testify, against the defendants' objection, that, in carting hay from said lot, they had crossed the plaintiff's lot in different places and directions, from year to year, in such way and manner as the plaintiff requested, and that they had paid the plaintiff certain sums of money for crossing said premises. The evidence tended to show that this had been the course of things for twenty-five years prior to about 1876. There was no evidence that any of these acts were done by the direction or with the knowledge or consent of any of the owners of the Perry lot. To the admission of this evidence the defendants excepted.

The defendants, on cross-examination of the plaintiff, and before the introduction of the testimony excepted to, asked him how the grass had been taken off of the Perry lot during the thirty or more years that he had known the premises, and asked him to name the persons who had carted it off from time to time, and to tell what way they took it off. The plaintiff, in reply to these questions, named the persons who had taken it off, and told in what directions and by what ways they took it, which were usually across the plaintiff's lot. The testimony afterwards admitted and excepted to was in reference to the persons named in this answer of the plaintiff.

The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.

Exceptions overruled.

H. J. Fuller, for the defendants.

W. H. Fox, for the plaintiff.

Lord J...