Clark v. Inhabitants of Waltham

• Decision Date: 25 June 1880
• Citation: 128 Mass. 567
• Parties: William V. Clark v. Inhabitants of Waltham
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 567

William V. Clark v. Inhabitants of Waltham

Supreme Court of Massachusetts

June 25, 1880

Middlesex. Tort for personal injuries received by the plaintiff while travelling on a public common, with footways in the defendant town, which it was alleged the defendant had negligently suffered to be out of repair and unsafe. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows:

The defendant derived title to the common, including also the land on which Rumford Hall stands, by two deeds from the Boston Manufacturing Company. The first deed, dated June 19 1854, is an ordinary deed, with no conditions, and covers the entire premises, except a certain part described and specially excepted therein. The second deed, dated August 1 1859, covers the excepted portion, and contains the following clause: "And this conveyance is made upon the following condition, to wit: that no building shall ever be erected on the lot of land above described or the land adjoining the same, owned by said inhabitants and conveyed to them by deed of said Manufacturing Company, dated June 19, 1854, and that both of said lots of land shall forever after be kept open as and for a common for the use of said inhabitants of the town of Waltham. But this condition shall not attach or be held to apply to so much of the northeast corner of the land conveyed by said deed dated June 19, 1854, as is now used for and in connection with Rumford Building so called, and the small shop in the rear of the same, being bounded on the west and south sides by the fences and the lines of the small shop as they now stand." Rumford Hall is a building owned by the defendant, and the first story is occupied in part by the post-office and by stores, for which the defendant receives rent; the hall above is used for municipal purposes, and occasionally rented for other purposes, as is usual with town-halls.

On August 13, 1877, the plaintiff, a boy nine years of age, in returning after dark from the post-office, to which he had helped carry a mail-bag from the depot, went, for a short distance, up Main Street, which bounds the common on the north, looking into the shop windows, and from thence proceeded to return home across the common, following one of the footpaths made by the defendant through the same. As he was passing thereupon, and just before leaving the same and entering upon the line of Elm Street, one of the public streets of the town, which bounds the common on the east, and being barefoot at the time, he stepped upon a rough iron stub of a post, which lacerated his foot and caused the injury complained of. This iron stub was the remnant of an iron post or rod fastened into a stone sleeper, which originally, with other posts, protected an opening in a continuous fence around said common from all but foot-passengers, and was at the entrance upon the common, but slightly outside of the limits of the street. The post had been broken off a long time before the accident.

The plaintiffs requested the judge to rule as follows: "1. The building being so rented and standing upon the parcel of land so held by the defendant as a common, from and to which a convenient foot-passageway is made and kept in...