Fisher v. New York & New England Railroad Company

• Decision Date: 04 May 1883
• Citation: 135 Mass. 107
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Walter H. Fisher v. New York & New England Railroad Company

135 Mass. 107

Walter H. Fisher v. New York & New England Railroad Company

Supreme Court of Massachusetts

May 4, 1883

Suffolk. Tort, for obstructing a right of way. Trial in the Superior Court, before Mason, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff offered to prove that, in the year 1848, the Norfolk County Railroad, whose successor the defendant is located its road-bed over lands of the plaintiff; that, in 1849, he conveyed the lands over which the location ran to said railroad corporation; that, in consideration thereof the railroad corporation paid him a certain sum of money, and agreed to bridge over a private roadway, which crossed the location, and which connected the plaintiff's remaining land on each side of the location, and to give him and whoever might become the owner of the land a right of way forever under the bridge; that he then entered upon the actual use of the roadway, and had used the same as of his own right, uninterruptedly, for nearly thirty-two years; and that the defendant and its predecessors had maintained the bridge from the time of its building until 1881, when the defendant, for the purpose of making a double track upon its road, filled up the space under the bridge.

The defendant asked the judge to rule that these facts, if proved, would not entitle the plaintiff to maintain his action. The judge so ruled; the jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

Exceptions sustained.

J. L. Newton, for the plaintiff.

W. C. Loring, (A. E. Pillsbury with him,) for the defendant.

C. Allen J. Field & W. Allen JJ., absent.

OPINION

C. Allen J.

The principal question in this case is, whether the St. of 1861 c. 100, ^[*] has the effect to prevent the owner of land adjoining a railroad from acquiring a right to a private way across the railroad by twenty years' use thereof. It is conceded that there is nothing in the statute to prevent the public, or persons owning land not abutting on the railroad, from so acquiring a right of way across it; and that, prior to the enactment of the statute, such easement might also be acquired by a person in the position of the plaintiff. But an ingenious and elaborate argument has been addressed to us, that, where an easement is not sought to be established by immemorial usage, the length of user necessary is, by analogy, the same as that required to obtain a title to land by adverse possession, and varies with variations in the statutes of limitations applicable to disseisin; and that therefore, since under the St. of 1861, c. 100, the owner of land adjoining a railroad cannot gain a right to land of the railroad...