Dodge v. Boston & P.R. Co.

• Decision Date: 02 September 1891
• Citation: 154 Mass. 299,28 N.E. 243
• Parties: DODGE v. BOSTON & P.R. Co.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 299

28 N.E. 243

DODGE v. BOSTON & P.R. Co.

Supreme Judicial Court of Massachusetts, Suffolk.

September 2, 1891

COUNSEL

J.H. Benton, for defendant.

OPINION

LATHROP J.

This is a bill in equity, filed on February 23, 1888, for specific performance of an agreement alleged to have been made by the defendant, in 1836, with John C. Dodge, the plaintiff's grandfather. The case was heard before a single justice of this court upon the pleadings and evidence, and comes before us on the plaintiff's appeal from a decree dismissing the bill. From the evidence it appears that the defendant corporation, on December 23, 1833, took, by the right of eminent domain, a parcel of land belonging to John C. Dodge in the town of Attleborough, and, having constructed its road over the land so taken, began to run trains of cars from Boston to Providence on August 23, 1835. By deed dated September 1, 1836, and acknowledged on May 6, 1837, John C Dodge conveyed a right of way over the land so taken to the defendant. After the description of the premises conveyed, and before the habendum, were the following clauses: "It being understood and agreed by and between the said parties to this deed that the said corporation shall erect, make, and keep up all necessary fences between the lands of the grantor and the land taken for said railroad. And it is further agreed by and between the said parties to this deed, and the said corporation by the acceptance of this deed do covenant and agree to and with the said grantor, for themselves, their successors and assigns, that the said grantor and his family shall have and enjoy the right of free passage on and over said railroad in the cars of said corporation, their successors and assigns as long as the land and appurtenances hereinbefore described shall continue to be used as a railroad or for railroad purposes under the charter of said corporation." It further appears from the evidence that in 1836 John C. Dodge had nine sons living with him; that in 1854 or 1855 he left this common wealth, and did not return to it, and died in January, 1866; that the plaintiff's father, a son of John C. Dodge, was living with him in 1836, and continued to live with him from that time until about a year after his own marriage in 1846; that he left the commonwealth in 1850, and returned to it in 1885 or 1886, and now resides here. In regard to the plaintiff, the testimony shows that she was born in 1854 or 1855 in the state of Pennsylvania; that when she was a child she lived for some time in the family of her grandfather after he left this commonwealth; and that she returned here with her father in 1885 or 1886, and has since lived with him. The evidence was somewhat conflicting on the question whether the defendant has by its acts recognized the plaintiff as a person entitled to ride free over its road. It does appear that when she was a child she occasionally went over the road, when accompanied by her father or mother, and was allowed to do so; and that since she came of age, passes had been occasionally given to her, she claiming the right to have them, but, as she states in her brief, "usually on objection by the officer of the company." On this state of the evidence, we need not consider how far the defendant would be bound by what the plaintiff contends is the practical construction put upon the deed by the officers of the defendant corporation. We find nothing in the evidence to show conclusively that what was accorded to her after she came of age was other than as a favor.

We pass, therefore, to the consideration of the construction of the deed. The word "family" has several meanings. Its primary meaning is the collective body...