Hall v. Boston & M.R.r.

• Decision Date: 01 March 1912
• Parties: HALL v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 174

97 N.E. 914

HALL v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1912

COUNSEL

James J. Myers and Arthur H. Brooks, for petitioner.

W. H Coolidge and G. S. Selfridge, for respondent.

OPINION

RUGG C.J.

The petitioner being an owner of land adjoining the railroad location claims a private right of way longitudinally over a portion of the location of the defendant acquired by continuous, open and adverse use from 1868 to 1908. The question is whether an adjoining landowner can gain by prescription an easement of travel longitudinally along and upon a railroad location since St. 1861, c. 100, now St 1906, c. 463, pt. 2, § 80. The material words of the earlier statute are that if such landowner occupies 'for the purpose of cultivation or otherwise any land belonging to or included within the location of any such railroad no continuance of such * * * occupancy of the land * * * shall create in such adjoining owner * * * any right to the land * * * so occupied.' The language of the earlier act was not changed substantially in St. 1874, c. 372, § 107, and Pub St. 1882, c. 112, § 215, in which St. 1861, c. 100, was successively embodied, and which were in force during the period within which the petitioner's prescriptive period was ripening. This statute was first before the court in Fisher v. N.Y. & N.E. R. R. Co., 135 Mass. 107 which held that its terms did not prevent the acquisition of a private right of way across a railroad location. Upon the authority of this case Deerfield v. Conn. River R. R. Co., 144 Mass. 325, 11 N.E. 105, was decided, although according to the plan there referred to and with the original papers in the case it appears that a part of the prescriptive right of way there established ran longitudinally along the railroad location for about 300 feet before crossing it. To the same effect are Turner v. Fitchburg R. R., 145 Mass. 433, 14 N.E. 627, and Fitchburg R. R. v. Frost, 147 Mass. 118, 16 N.E. 773. In Maney v. Providence & Worcester Railroad, 161 Mass. 283, 37 N.E. 164, it was held that the statute did not prevent prescriptive acquirement of title to land outside of the location owned by a railroad by virtue of a purchase. See, also, Littlefield v. Boston & Albany R. R., 146 Mass. 268, 15 N.E. 648. None of these decisions exactly covers the facts of the case at bar, yet in principle they seem to include it. So far as the language of the statute goes, it no more inhibits the gaining of a prescriptive easement of travel longitudinally along, than it does transversely across, the location. But it was said in Fisher v. New York & New England R. R., 135 Mass. at page 109: 'Neither in the letter nor in the spirit of the statute is any intention to be found of cutting off the right to acquire the easement of a right of way across a railroad by 20 years' use.' It is also said there that in view of other statutes in effect at its passage, its purpose was 'not to allow an abutting owner to gain a title by encroaching on the land adjoining his own.' The implication of this language is somewhat toward a title on a parity in kind with that of the abutter. The words 'occupy,' 'occupied' and 'occupancy' have a tendency to indicate a permanence and continuity of possession other and greater than that required in the establishment of a right of way, which might in many instances be infrequent or intermittent. Moreover, the words 'right to the land * * * so occupied' lean slightly toward a kind of interest in the land larger in its nature than a mere easement. Although in other connections the word 'occupancy' might be given a somewhat broader meaning, yet in view of the history of these statutes...