Eastern R. Co. v. Allen

• Decision Date: 03 April 1883
• Citation: 135 Mass. 13
• Parties: Eastern Railroad Company v. Aaron H. Allen
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 13

Eastern Railroad Company v. Aaron H. Allen

Supreme Court of Massachusetts

April 3, 1883

Suffolk. Writ of entry, dated December 18, 1880, to recover a parcel of flats in that part of Boston formerly Charlestown. At the trial in the Superior Court, without a jury, before Aldrich J., it appeared that the flats in question were originally flowed by tide water, and that they now lay under and on the easterly side of a tide-mill pond. It was admitted that the pond was originally a cove, across the mouth of which, as early as 1645, a dam had been built.

The demandant claimed title to the land by virtue of a lost grant of the fee from the rightful proprietor, either the Colony or the town of Charlestown, to grantees whose title had become vested in the demandant; and also by virtue of an exclusive notorious and adverse possession thereof, continued for more than twenty years, by itself and by those under whom it claimed.

The tenant, who owned the upland adjoining the pond, claimed title in fee to the land under the colonial ordinance of 1647, contending that the ancient mill proprietors and their successors had only an easement in the land of flowage for mill purposes, and that this easement had ceased by reason of an abandonment of the mill in 1872.

The judge found, upon evidence documentary and oral, that there was an original grant in fee of the demanded premises by the rightful owners thereof, and that the title of the original grantees was vested in the demandant; and that, if the evidence did not authorize the finding of an original grant the demandant and its grantors had acquired title to the demanded premises by adverse possession continued for more than twenty years before the date of the writ. The judge reported the case, with the evidence, for the determination of this court. The nature of the evidence, so far as it relates to the question of adverse possession, appears in the opinion.

Judgment for the demandant.

C Robinson, Jr. & G. A. Blaney, for the tenant.

R. Olney & W. Minot, Jr., for the demandant.

C. Allen J. Field & W. Allen JJ., absent. Holmes, J., did not sit.

OPINION

C. Allen J.

The demandant contended, at the trial, that it had an absolute title in fee to the flats in controversy, by virtue of an exclusive, notorious and adverse possession thereof, continued for more than twenty years, by itself and by those under whom it claimed; and it was so found. If this finding was warranted by the evidence, the judgment must be for the demandant.

As bearing upon this question, there was a large body of evidence, which tended to show the following facts, among others: The Proprietors of the Middlesex Canal, from whom through mesne conveyances, the demandant's title was derived, were a corporation, established primarily as a canal company, authorized by its charter to collect a toll for all masts, timber and lumber floated through its canal; and, by a subsequent amendment, it was also authorized to purchase and hold mill-seats on the waters connected with the canal, and lands to accommodate the same, and to erect mills thereon. Sts. 1793, c. 21, § 6; 1798, c. 16. In 1803, this corporation took a deed of a certain messuage, mills, mill-pond, dam, &c., which included the premises now in controversy. The canal entered upon the mill-pond, and, at the...