Coakley v. Boston & M.R. Co.
| Decision Date | 17 April 1893 |
| Citation | 159 Mass. 32,33 N.E. 930 |
| Parties | COAKLEY v. BOSTON & M.R. CO., (two cases.) |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The actions were brought under Pub.St. c. 112, § 213, which gives a right of action for death caused by collision at a grade crossing, where the bell was not rung or whistle sounded as required by section 163. Section 163 requires the whistle on a locomotive to be sounded or the bell rung at the distance of at least 80 rods from the place where the road crosses upon the same level any highway, town way, or traveled place.
A.H Russell, for plaintiff.
W.I Badger and T. Hunt, for defendant.
The plaintiffs contend that, as the road had been in use by the public for many years, it would have been competent for the jury to find that it was a highway by prescription or by dedication. But the bill of exceptions discloses no conflict of evidence upon the status of the road. Upon uncontradicted evidence it appeared that the road was laid as a town way in the year 1731, and that the part of it in which the crossing is situated is yet such a way, unless it was discontinued in the year 1872. The town records show an article in a warrant for a meeting held on November 30, 1872, "to see if the town will order a discontinuance for public travel of so much of the 'Sand Hill Road,' so called, as lies between its point of divergence from the main road, near the house of J.N. Morse, and the point where the new road shall connect the same,--the said discontinuance to take effect from and after the time when said new road shall be opened for public travel,--or to do or act in any manner relative thereto," and a vote "To adopt a motion in writing by J.S. Draper, as follows: 'Whereas, a new road has been laid out and accepted by the town this day, designed to accommodate better the travel that now passes over the "Sand Hill Road," so called, therefore, voted and ordered hereby that, from and after the time when said new road shall be opened for public use, the Sand Hill road, between its divergence from the main road, near the house of J.N. Morse, and the point where said road enters upon and connects therewith, [[that is, with the new road,] shall be discontinued as a public road: provided, however, that the abutting owners on the road thus discontinued shall have the right to improve the same as a private way for their especial use.' " The new road was opened in the year 1875, or before. No repairs have been made by the town on the Sand Hill road for many years, and in the year 1880 signs stating that it was "Not a Public Way" were placed at points between which the vote ordered that it should be discontinued; but it has been left open and unobstructed, connecting at either end with public roads, and it has been in continuous use since a time long prior to the year 1872. It does not appear when the railroad was constructed, but the crossing is planked between the rails, and over it are the usual signs. No evidence was offered to show when the crossing was planked, or the signs erected. The objections urged against the validity of the attempted discontinuance are that the road was not a town way, but a county or highway; that a vote and record do not work a discontinuance unless the road is actually closed to travel; that the discontinuance was not to take effect until an indefinite future time; and that it was upon condition.
The contention that upon the evidence the road might have been found to be a highway by prescription or otherwise, as distinguished from a town way, so that the town had no power to discontinue it, is unsound. If the mere use of a private way, without proof that the use is adverse to the owner of the soil, is evidence from which to find a highway by prescription, (see Johanson v. Railroad Co., 153 Mass. 57, 26 N.E. 426,) the same principle does not apply to town ways. All the public have the right to use town ways at their pleasure; and the exercise of this right cannot change the nature of the way, or withdraw it from the jurisdiction of the town. Webster v. Lowell, 142 Mass. 341, 8 N.E. 54; Bigelow v. Hillman, 37 Me. 52; Larry v. Lunt, Id. 69; Pillsbury v. Brown, 82 Me. 450, 19 Atl.Rep. 858. Even a defective location by the town rebuts any presumption of dedication or of location as a county way, (Avery v. Stewart, 1 Cush. 496;) and discontinuance by a town is proof that the way was laid by the town, (Brownell v. Palmer, 22 Conn. 117.) We therefore regard the road as one which the town had the power to discontinue; and, whatever the nature or amount of travel over it after the vote of discontinuance, it could not have been a highway by prescription, as the accident was less than 20 years after the passage of the vote. In this commonwealth it is not necessary to the legal discontinuance of a way, in addition to the vote or adjudication of the proper authority, there should be an actual shutting up of the road, or an exclusion of travel. A discontinuance adjudicated by the proper tribunal is complete without more. See Hallock v. Franklin Co., 2 Metc. (Mass.) 558; Tinker v. Russell, 14 Pick. 279; Com. v. Western, 1 Pick. 136; Com. v. Boston & A.R. Co., 150 Mass. 174, 22 Atl.Rep. 913. Whether, if a discontinued way is left open, the town may be still liable for injuries to travelers, is a different question. See Pub.St. c. 49, §§ 94, 95. That they are so liable in Connecticut is all that we understand the case of Munson v. Derby, 37 Conn. 312, cited upon this point by the plaintiffs, to decide. Tinker v. Russell, ubi supra, seems to support the contrary doctrine.
The fact that the vote was to discontinue from and after the time when the new road, laid on the same day, should be opened for use, did not make the discontinuance void. While the laying of the new way and the discontinuance of the old one both result from the same vote or adjudication, it is reasonable that the public should not be excluded from the old road until the new one is ready for use. Whether, for the purpose of founding claims for damages, the vote would be treated as a present discontinuance, we need not now consider. It is enough to...
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