Gray v. Kelley

• Decision Date: 05 January 1906
• Citation: 76 N.E. 724,190 Mass. 184
• Parties: GRAY et al. v. KELLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 184

76 N.E. 724

GRAY et al. v. KELLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

January 5, 1906

The following is the plan referred to in the opinion:

(Image Omitted)

COUNSEL

Robert A. Jackson, for petitioners.

Thomas W. Proctor and Wm. H. White, for respondent.

OPINION

SHELDON, J.

This is a petition for the registration of title to a traingular strip of land bounded on the north by a stone wall, which is claimed by the petitioners to be wholly on their land; one the east by the petitioners' land; and on the south by land of the respondent. The westerly apex of the triangle is on the easterly side of a private way, and the triangle includes a strip of land running southeasterly from this apex something over 214 feet, and 15 feet wide on its easterly side. This triangle and the surrounding land are shown on the accompanying plan. The petitioners took their title under a deed from Simon Warren to John L. Gardner, dated June 7 1862, which it is admitted conveyed the land lying on the north of the triangular strip in question; and the respondent derived his title under a deed from Louisa Warren to John W Warren, dated March 1, 1856, which it is admitted conveyed the land lying south of this triangle. The petitioners claim that the premises conveyed by Simon Warren to Mr. Gardner included the whole of this triangle; but the respondent denies this, though admitting that they did include a large part of it. The respondent claims title to the strip by adverse possession of John W. Warren and his successors in title.

At the trial in the superior court, on appeal from the land court, four issues were submitted to the jury, as follows: 'First. Does the westerly end of the wall mentioned in the petition coincide with the westerly end of the boundary line between land of the petitioners and land of the respondent, as shown by their respective record titles? Second. If the westerly end of said wall does not coincide with the westerly end of said boundary line, how far is the westerly end of said wall north or south of the westerly end of the boundary line between land of the petitioners and land of the respondent, as shown by their respective record titles measuring on the easterly line of the passageway mentioned in the petition? Third. Have John W. Warren and his successors in title used and occupied the whole or any part of the land described in the petition openly and not permissively, but adversely, exclusively, and under claim of right, continuously for more than 20 years without a break, or an abandonment of, or a withdrawal from, such possession, and without interruption or interference by John L. Gardner or his successors in title? Fourth. If the whole or any part of said land has [not] been so used and occupied, how much of said land has been so used and occupied?' The jury answered the first issue, 'No,' and the third, 'Yes.' In answer to the second and fourth issues they found that the westerly end of the stone wall was four feet south of the boundary line as shown by the record titles, and that the adverse possession mentioned in the third issue included the whole of the land in dispute; and the case now comes before us on the petitioners' exception to the admission of certain evidence offered by the respondent.

A witness called by the respondent testified that over 40 years ago, while employed by Mr. Gardner, under whom the petitioners took their titles, he built this wall under orders from Mr. Gardner, who told him to throw out the three-cornered piece, and have the wall run straight as the boundary line. He then testified that, while building this wall, he saw John W. Warren, who then owned the respondents' land, 'right in front of the wall,' and that Mr. Warren said he was glad the wall was going to be built straight. He further testified, under the petitioners' exception, that when they were talking one day about the line, and when they were building the wall, Mr. Warren said: 'Well, we will give and take. If there is any chance to give and take, we will give and take.' Mr. Warren was dead at the time of the trial. The petitioners' first ground of objection was that this testimony was given in answer to leading questions. But the witness was a very aged man, and his recollection appeared to have been exhausted by the general questions which had been previously put. Moreover the presiding judge had the right, in his discretion, to allow leading questions to be...