Inhabitants of Deerfield v. Connecticut River R. Co.

• Decision Date: 04 April 1887
• Citation: 11 N.E. 105,144 Mass. 325
• Parties: INHABITANTS OF DEERFIELD v. CONNECTICUT RIVER R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 325

11 N.E. 105

INHABITANTS OF DEERFIELD v. CONNECTICUT RIVER R. CO.

Supreme Judicial Court of Massachusetts, Franklin.

April 4, 1887

COUNSEL

Gideon Wells, for defendant.

Under the declaration in the case, it was not necessary for defendant to show title to the locus, and the plaintiff's only right to recover was by proving a prescriptive way over land of the defendant. The use shown was not such as to give the town in its corporate capacity a right of way over the defendant's land. This use was neither so adverse nor continuous as to establish a prescriptive right. Plimton v. Converse, 44 Vt. 158; First Parish, etc., v Beach, 2 Pick. 59, note; Kilburn v. Adams, 7 Metc. 33. The use of the way by officers of the town in the burial of paupers were not acts of the town, and therefore their use of the road was not use by the town. Hafford v. New Bedford, 16 Gray, 297; Dunbar v Boston, 112 Mass. 75; Butrick v. Lowell, 1 Allen, 172; Crandell v. Taunton, 110 Mass. 419; Sale v. Pratt, 19 Pick. 191.

The use, if adverse, was not sufficiently continuous to create a prescriptive right. Kennebeck Purchase v. Springer, 4 Mass. 415; Slater v. Jepherson, 6 Cush. 129; Cook v. Babcock, 11 Cush. 206; Trustees, etc v. Kirk, 6 Hun, 259. If the town has acquired the right to the use of the defendant's land, it can compel the road to abandon its second track, as the case finds that it necessarily encroaches upon the way. There was an implied authority for the selectmen to make such arrangements as might be necessary with the defendants to obtain this location. The doctrine of prescription is founded upon the theory of a presumed grant,--upon the theory that an owner would not permit the use or occupancy of his property by another for a long time without right. Anything that properly accounts for the use or occupancy, short of a grant, rebuts the presumption. Thus, if it appears that the occupation was under a mistake as to the right of the party, the use is not adverse. Worcester v. Lord, 56 Me. 265; Dow v. McKenney, 64 Me. 138; Breidegam v. Hoffmaster, 61 Pa.St. 223. The use must be such and under such circumstances that the owners of the servient tenement know or ought to know that it is adverse, under a claim of right, and not by permission. Silva v. Wimpenney, 136 Mass. 253; Thompson v. Pioche, 44 Cal. 508; Dodge v. Stacy, 39 Vt. 558; Gage v. Pitts, 8 Allen, 527.

The selectmen, assuming to act for the town, obtained the license, and proceeded to build the road under and according to it. The defendant believed, and had reason to believe, that the selectmen had authority to do what they undertook to do on behalf of the town. This sufficiently accounts for the defendant's permitting the continued use without presuming a grant. Smith v. Higbee, 12 Vt. 113. It is not a question as to whether or not the selectmen had authority to bind the town, as by contract, but whether or not their assuming to have that authority, and the defendant believing and acting upon it, did not prevent the use made under the supposed license being adverse. St.Mass. 1861, c. 100, must have been passed to meet just such a case as this. Com. v. Hartford & N.R.R., 14 Gray, 379.

The declaration counts upon a right of way from the county road to the cemetery. This was a descriptive averment, and must be proved as laid, or there would be a variance fatal to the plaintiff's case. Starkie, Ev. pt. 4, 1530; Rogers v. Allen, 1 Camp. 313; Hill v. Haskins, 8 Pick. 83. If the plaintiff recovers in this action, he would have a right of way from the county road, although the jury might have found that the way acquired was only that part not changed in 1855. There was nothing in the charge which took the place of this statement of the law to which, on the pleadings, the defendant was entitled.

Conant & Conant, for plaintiffs.

The evidence of the use of the way by the town in its corporate capacity was sufficient to justify a finding that it had acquired a right to use said way as claimed. Continuous adverse use of a way across another's land for twenty years may be established without direct evidence of its actual use during each year. Bodfish v. Bodfish, 105 Mass. 317; Carr v. Foster, 3 Q.B. 581. If the plan of the land was filed in the clerk's office, then all the land included in the location was conveyed by said deed, and the plaintiffs could acquire a private right of way over the same. Fisher v. New York & N.E.R. Co., 135 Mass. 107. If said plan was not filed, then no land was taken by the defendant, and the deed was inoperative; it contained no particular or general description of any land. The selectmen, under their general authority, could not bind the town by signing the license authorizing them to make and use said road. Goff v. Rehoboth, 12 Metc. 26; Barker v. Chesterfield, 102 Mass. 127; Palmer v. Haverhill, 98 Mass. 487. If the plaintiff town had a right of way as alleged, the defendant corporation had no legal right to obstruct it, and the fact that its second track was laid in a reasonable and proper manner is immaterial.

OPINION

FIELD J.

We see no reason to doubt that a town may acquire by prescription a private right of way as appurtenant to a public burial ground belonging to the town. The statutes, for many years past, have provided that "each town and city shall provide one or more suitable places for the interment of persons dying within its limits." Pub.St. c. 82, § 9; Gen.St. c. 28, § 4; St.1855, c. 257, § 1. As a town could acquire a private right of way from a public way to a public burial ground by grant, it could acquire a similar right of way by prescription. Such a way, although open to use for all persons who have a right to go to and from the burial ground, is not necessarily a public way. It may not be a way for all travelers, but only for those who have rights in the burial ground. Suppose such a way were closed by a gate at the place where it meets a highway, and this gate were kept locked, and was only opened by some person in charge of the burial ground, for the purpose of admitting persons to it, this would be strong evidence that it was a private way. Com. v. Low, 3 Pick. 408; Com. v. Newbury, 2 Pick. 51; Austin's Case, 1 Vent. 189; Thrower's Case, Id. 208; People v. Jackson, 7 Mich. 432; People v. Kingman, 24 N.Y. 559; Danforth v. Durell, 8 Allen, 242; Gordon v. Taunton, 126 Mass. 349; Bateman v. Bluck, 18 Q.B. 870. If the way in the present case is a public way, the remedy for an obstruction would not be by an action by the town; if it is a private way belonging to the town, the remedy is by such an action. There is no evidence that the old way was ever laid out, either as a town way or highway, or that this way was altered, or the new way laid out either as a town way or highway. The defendant in its brief speaks of the new way as used for the purpose of travel to the depot, as well as to the cemetery, but no such fact appears in the exceptions. So far as appears by the exceptions, the way was only used in going to and from the cemetery. We think that any use made of this way in going to and from this cemetery by the inhabitants of the town, or by persons holding rights in the cemetery derived from the town, and any acts of the town in constructing or repairing the way, were competent evidence to prove that a private right of way, as claimed by the plaintiff, had been acquired by prescription. The rulings upon the admission of evidence offered by the plaintiff to show an adverse use by the town were sufficiently favorable to the defendant. The defendant was entitled to have the whole use made of the way put in evidence, but it was for the jury to determine whether this evidence showed that it was used as a public or a private way.

The only exceptions of the defendant are to the refusal of the presiding judge to give the instructions requested. We think that there was evidence for the jury that the plaintiff had acquired a private way by prescription, unless the license put in evidence rendered the use permissive, and that the first request was rightly refused.

As to the second request, it is to be noticed, as the defendant contends, "that the proposed way, as shown upon the plan, was not a crossing, but provided for the occupation of land of the defendant for the purpose of conveniently reaching the crossing." We see nothing, however, in the case that distinguishes it in respect to the question raised by this request from Fisher v. New York & N.E.R. Co., 135 Mass. 107. Whether a right of way can be acquired by prescription across a railroad track since the passage of St.1853, c. 414, § 4, has not been argued; but, although this question has not been actually decided in the case of private ways, there are intimations that this can be done, (see Gay v. Boston & A.R. Co., 141 Mass. 407, 6 N.E. 236; Wright v. Boston & A.R. Co., 142 Mass. 296, 7 N.E. 866;) and in the case of a public way this was decided in Fitchburg R. Co. v. Page, 131 Mass. 391, although the effect of this statute was not considered.

The third and fourth requests present questions of more difficulty. The petition of Ephraim Williams and others asked that an alteration be made "in the now traveled road, by carrying the same about the width of the present road to the east, and by commencing the ascent of the hill two or three rods north of the house of Arad Munn." This was asked because the existing road was "unnecessarily steep and difficult of ascent," and, "in the opinion of your petitioners, a road may be made which will not exceed from four to five degrees of altitude." The inhabitants of the town, at a town meeting duly warned, voted "that the selectmen be a committee to grade the road to the burying ground agreeable to the petition of Ephraim...