Gifford v. Town of Westport

• Decision Date: 27 February 1906
• Citation: 190 Mass. 323,76 N.E. 1042
• Parties: GIFFORD v. TOWN OF WESTPORT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 323

76 N.E. 1042

GIFFORD v. TOWN OF WESTPORT et al.

Supreme Judicial Court of Massachusetts, Bristol.

February 27, 1906

COUNSEL

Frank M. Sparrow, for appellant.

E. D Stetson, for appellees.

OPINION

LATHROP, J.

This is a bill in equity, filed in the superior court on February 27 1905, by the widow and devisees of Jonathan Gifford against the town of Westport and the board of landing commissioners of that town, appointed under St 1848, p. 696, c. 171, to restrain the defendants by injunction from removing from the public landing place in the town a small boathouse, alleged to have been used for the housing of boats, and the storage of fishing tackle, sails, oars, and warps, for more than 40 years. On the bill being filed a temporary injunction was issued, and the case was afterwards heard by a justice of the superior court, who ordered a decree to be entered dismissing the bill, with costs. He also filed a memorandum of his decision, stating the reasons therefor; and the case is before us on an appeal from the decree. The record contains a full report of the evidence.

A boathouse was built in 1857, by Jonathan Gifford and Edward Akin, on the landing place in question. In 1867 Akin sold out his share to Gifford, who died in 1896, leaving his property to his widow, the plaintiff. In 1900 a new boathouse was built on substantially the same place as the old one, by the plaintiff's son; and in 1905 the landing place commissioners of Westport moved the new building to another part of the beach. The son moved it back to its former location; and this bill in equity was brought. There can be no doubt that the placing of the old boathouse on a public landing was an intrusion at common law, and made the building a nuisance. Com. v. King, 13 Metc. 115; Morton v. Moore, 15 Gray, 573; Com. v. Blaisdell, 107 Mass. 234; New Salem v. Eagle Mill Co., 138 Mass. 8.

If the plaintiff is entitled to recover, it must be that under the statute there had been acquired a possession for 40 years. The judge ruled that this possession must be adverse, and under a claim of right, and found that there was no such possession. The statute in force when the first boathouse was built was section 61 of chapter 24 of the Revised Statutes of 1836, which provides that, when the boundaries of a landing place, among other public places mentioned, can be made certain (as here) 'no length of time, less than forty years, shall justify the continuance of a fence or building on * * * the landing place.' This statute, in substantially the same form, has come down to the present time. Gen. St. 1860, c. 46, § 1; Pub. St. c. 54, § 1; Rev Laws, c. 53, § 1. In Cutter v. Cambridge, 6 Allen, 20, 24, it was said by Mr. Justice Hoar, in construing Rev. St. 1836, c. 24, § 61: 'The language of ...