Gordon v. City of Taunton

• Decision Date: 03 March 1879
• Citation: 126 Mass. 349
• Parties: Timothy Gordon v. City of Taunton
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 349

Timothy Gordon v. City of Taunton

Supreme Court of Massachusetts

March 3, 1879

Argued October 25, 1878

Bristol. Tort for breaking and entering the plaintiff's close in August 1877, and removing a fence therefrom. At the trial in the Superior Court, before Bacon, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the material parts of which appear in the opinion.

Exceptions sustained.

W. H Fox & S. M. Thomas, for the defendant.

T. M Stetson & G. E. Williams, for the plaintiff.

Colt J. Endicott & Lord, JJ., absent.

OPINION

Colt, J.

The superintendent of streets, acting under the order of the city council of Taunton, in August 1877 removed a fence which had been erected by the plaintiff in 1855 for the purpose of enclosing the premises in dispute. This is the trespass complained of.

The plaintiff, through mesne conveyances, claimed title under a deed from James L. Hodges, dated in 1836, bounding the land, on the northerly and westerly sides, by the road leading into Deane Street, so called. Hodges derived his title from Job W. Hall, in 1818, by whom the land was bounded, on the same side, partly on the common, near the meeting-house, and partly on the highway and other land. The road leading into Deane Street, and called Spring Street, was laid out in 1830, over the old common, and, as the defendant contended, separated a part of the common from the rest, on the side of land owned by the plaintiff's grantors. The extent and true limit of the common on that side was in dispute at the trial; and many aged witnesses testified that the land enclosed by the plaintiff's fence was, from their earliest recollection, unenclosed land, openly used by the public, and reputed to be a part of the common, down to the time when the fence was built in 1855. The title by deed was thus in dispute. But the plaintiff also rested his claim on a title acquired by adverse possession.

The defendant, on the other hand, contended that the land was not included by the description in Hall's deed in 1818, and had not been acquired by the disseisin of the plaintiff, because his possession had not been uninterrupted.

It was in evidence, that the proprietary records of Taunton contained no grant or allotment of this land to the defendant, and it does not appear that the town or the city ever acquired title, by express grant, from the original proprietors. Whether, by dedication, or presumption of grant, the city has now the legal title to the common; whether that title is an absolute title, with full power of disposition, or is held in trust to preserve the land for the use and benefit of the public; or whether the title still remains in the proprietary; it is not now necessary to determine, because there was evidence which would justify a finding that either the public, or the city, had acquired a public easement in the land, by adverse use and enjoyment, before the time when the plaintiff first took possession by erecting his fence in 1855. If the jury were satisfied that the land in dispute was within the limits of the common, then the erection of the fence created a nuisance, which the superintendent of streets, with or without the order of the city government, had a right to remove at any time before the plaintiff had acquired his alleged title by disseisin. Valentine v. Boston, 22 Pick. 75. Wrentham v. Norfolk, 114 Mass. 555. Green v. Putnam, 8 Cush. 21. Arundel v. M'Cullough, 10 Mass. 70.

In this aspect of the case, the defendant asked the judge to instruct the jury, that the fact that the land was left open and unenclosed, and was used by the public, for a period of...