Kohlhepp v. Inhabitants of West Roxbury

• Decision Date: 08 September 1876
• Parties: Eliza Kohlhepp v. Inhabitants of West Roxbury
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 596

Eliza Kohlhepp v. Inhabitants of West Roxbury

Supreme Court of Massachusetts

September 8, 1876

[Syllabus Material]

Norfolk. Tort for breaking and entering the plaintiff's close, digging a ditch through it, and turning the water of Stony Brook through the same.

At the trial in the Superior Court, before Allen, J., it was admitted that the acts which constituted the alleged trespass were done bye certain commissioners appointed by the town of West Roxbury to improve Stony Brook and its tributaries for the purposes of sewerage, under the provisions of the Sts. of 1868, c. 223, and 1870, c. 220, after the filing by the commissioners, in the registry of deeds for the county of Norfolk, the paper and plan or plans hereinafter mentioned. It appeared that the close was the property of the plaintiff and that her husband, Frederick Kohlhepp, owned a tract adjoining, the whole, upon the plan mentioned, being marked as belonging to him. The defendant, in justification of the alleged trespass, contended that the close had been taken by the town for widening Stony Brook, under the acts above mentioned, and put in evidence the following paper, which was recorded on January 12, 1871, in the registry of deeds for Norfolk County:

"Know all men by these presents, that whereas the town of West Roxbury, at a meeting duly held on the twenty-fifth day of June, 1870, in pursuance of the provisions of chapter 220 of the acts of 1870, appointed the undersigned, Theodore B Moses, William J. R. Evans, and Robert M. Morse, Jr., commissioners to improve Stony Brook and its tributaries, and authorized said commissioners to exercise all of the powers granted to said town by chapter 223 of the acts of the year 1868, and to perform all the duties therein imposed on the selectmen of said town.

"Now, therefore, the undersigned hereby declare that in the capacity of commissioners as aforesaid, and under the authority and for the purposes stated in said chapter 223 of the acts of the year 1868, and in the name and behalf of said town of West Roxbury, they did, on the ninth day of January, A. D. 1871, take a certain piece of land believed to belong to Frederick Kohlhepp, and bounded and described as follows, to wit: beginning at the southerly corner of the premises herein described, and thence running northerly eighty-three and five tenths feet; then turning and running northeasterly sixty-three feet; then turning and running northwesterly thirty-one and two tenths feet; then turning and running southwesterly sixty-three and five tenths feet; then turning and running southerly seventy-nine feet; and then turning and running southeasterly thirty-three feet to the point of beginning. Containing four thousand three hundred and thirty-five square feet, the same being shown on a plan made by Theodore B. Moses, and recorded with Norfolk Deeds, lib. , fol. , and they further declare that said land was taken, pursuant to the provisions of chapter 223 of the acts of the year 1868.

"In witness whereof, they have hereto set their hands, this ninth day of January, 1871.

"T. B. Moses, "Wm. J. R. Evans, "R. M. Morse, Jr., Commissioners."

The defendant also produced a roll of ten plans, numbered 1 to 10 respectively. On the face of the plan No. 1 were the words. "Plan of lands taken by the town of West Roxbury to widen and straighten Stony Brook. October 1st, 1870, scale 20 ft: T. B. Moses, Surveyor." On the face of each plan were the words, " October 1st, 1870, scale 20 ft. T. B. Moses, Surveyor.' Received and filed January 12, 1871. J. Foord, Register." On the back of plan No. 2 was the following indorsement, in the handwriting of the register of deeds for said county: "190, town of West Roxbury, lands taken to widen Stony Brook, 10 plans."

It was agreed...