Hurlbut Rogers Mach. Co. v. Boston & M.R.R.

• Decision Date: 01 April 1920
• Citation: 235 Mass. 402,126 N.E. 789
• Parties: HURLBUT ROGERS MACHINERY CO. v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 402

126 N.E. 789

HURLBUT ROGERS MACHINERY CO.

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1920.

Exceptions from Land Court, Middlesex County; C. T. Davis, Judge.

Petition for registration of title to land by the Hurlbut Rogers Machinery Company against the Boston & Maine Railroad, resulting in adverse decree, and plaintiff excepts. Exceptions overruled.

Joseph J. Feely and Herbert A. Baker, both of Boston, for petitioner.

Archibald R. Tisdale, of Boston, for respondent.

BRALEY, J.

The first question is whether any portion of the land described in the petition for registration comes within the location of the respondent's railroad. If the boundary lines shown on the plan filed with the petition are the true boundaries it is manifest that no part of the location is included. But the respondent contended and introduced evidence tending to show that the northerly line of the location ran through the extreme southwesterly corner of the land and buildings, leaving a small triangular parcel and part of the chimney within the limits of the railroad.

The boundary being in controversy, it was a question of fact on all the evidence, including the various surveys and plans, and the actual occupation and user by the parties, where the true line originally ran, and was to be established in the ascertainment of the petitioner's title. Dodd v. Witt, 139 Mass. 63, 29 N. E. 475,52 Am. Rep. 700;Temple v. Benson, 213 Mass. 128, 100 N. E. 63;Morrison v. Holder, 214 Mass. 366, 368, 369, 101 N. E. 1067;Hobart v. Towle, 220 Mass. 293, 107 N. E. 954.

The adverse finding, that under the grant appearing of record the petitioner's land extended only to the northerly side line of the location, having been warranted by the evidence, is conclusive. American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 80 N. E. 526;Boston & Albany Railroad v. Reardon, 226 Mass. 286, 291,115 N. E. 401. The petitioner, however, having also claimed title by adverse possession, the next question is whether on this ground registration could be decreed.

The continuous, open, peaceable and unopposed use and occupation by the petitioner of the premises under claim of title for more than the prescribed period undoubtedly is shown by the record, and was so found at the trial. It ordinarily would follow that the petitioner would be entitled to registration. Holloran v. Holloran, 149 Mass. 298, 21 N. E. 374;First Baptist Church of Sharon v. Harper, 191 Mass. 196, 208, 77 N. E. 778;Keith v. Kennard, 222 Mass. 398, 110 N. E. 1030, L. R. A. 1916D, 3; R. L. c. 128, § 18, as amended by St. 1905, c. 249, § 2. But the respondent, while not claiming title by deed, relies on the location acquired presumably under Gen. Sts. c. 63, §§ 17 and 18, the validity of which is not questioned. The petitioner's deed, although dated January 16, 1872, was not recorded until 1875, and the taking by the respondent, who is not shown to have had actual notice of the conveyance, was July 31, 1872. By St. 1861, c. 100, in force when these transactions occurred, and St. 1874, c. 372, §...