Manners v. City of Haverhill

• Decision Date: 19 June 1883
• Parties: John Manners v. City of Haverhill
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 165

John Manners v. City of Haverhill

Supreme Court of Massachusetts

June 19, 1883

Argued November 8, 1882 [Syllabus Material] [Syllabus Material]

Essex. Tort, in three counts. The first count alleged that the defendant forcibly entered the plaintiff's close in Haverhill, (described as bounded on the north by Merrimack Street, on the west by land of Alonzo Way, on the south by the Merrimack River, and on the east by the city landing,) "and tore down and destroyed a certain wooden building thereon." The second count was for the conversion of a wooden building, the property of the plaintiff. The third count was for the conversion of "a certain lot of lumber," the property of the plaintiff. The answer was as follows:

"And now comes the said defendant, and, for answer to the plaintiff's declaration, says that, as to a part of the premises described in the plaintiff's writ as the close of the plaintiff, it denies that the same is the soil and freehold of the plaintiff, and says that the same is within the limits of a town way, upon the banks of the Merrimack River in said city, which way it was the duty of the defendant to keep in repair, open, free and unobstructed. And the plaintiff had erected on said way a wooden building obstructing said way, and said building was a public nuisance, and especially a nuisance to the defendant, and the defendant, by its agents, entered upon said way and removed said building.

"And the defendant upon its own knowledge denies that it broke and entered the plaintiff's close, and that it converted to its own use the goods and chattels of the plaintiff, as alleged in his writ."

Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, which, after stating that the pleadings formed part thereof, was in substance as follows:

The defendant admitted an entry upon the described close, by its agents, and justified on the ground that the part upon which the entry was made was a town way, which it was obliged to keep in repair, and that it entered to remove a building which constituted a nuisance and an obstruction to travel.

The defendant put in evidence the records of a town meeting in Haverhill, in March, 1772, showing the following vote "It being put to vote whether the town will accept and allow of the way laid out by the selectmen near Capt Mullikens from the main street to the river part on land of James McHard Esqr: & part on land of William Wingate: voted in the affirmative." The defendant also put in evidence tending to prove that the way there mentioned was located from Merrimack Street to the river, between the estate now belonging to the plaintiff and that belonging to one Hunking. The plaintiff admitted the existence of a way about fifteen feet wide, from the street to the river, and the defendant contended that the way was fifteen feet wide for the distance of about sixty feet, and then became wider, in the rear of the plaintiff's brick building, so as to include the land upon which the building destroyed by the defendant was erected.

The plaintiff's title was derived, by mesne conveyances, from the James McHard named in the records aforesaid, whose deed, dated in 1767, described his premises as bounded "southerly on the river to low-water mark." In 1785, one Thomas McHard White conveyed the premises as "bounding southerly on the town landing." In 1835, one Jonathan K. Smith conveyed to Abigail C. Gubtal premises described as follows, viz.: "beginning at the town land so called, running westerly on the highway twenty-six feet to land owned by Jonathan Kimball Smith, thence running southerly by said Smith's land about sixty-three feet, thence running easterly by town landing twenty-five feet, thence running northerly to the bound first mentioned sixty-two feet." Gubtal conveyed to Hiram Peaslee, and he testified that at the time of her conveyance to him there was a bank wall, about sixty feet from Merrimack Street, and that she (now deceased) told him that she owned only to the bank wall, and that beyond that, or south of that, was the town land or town landing. He testified that this was said upon the premises, while she was pointing out her bounds to him. In all the later deeds no southern abuttals were named, and the plaintiff contended, and offered evidence tending to show, that, in Gubtal's time, the bank wall was substantially at ordinary high-water mark, and that the shore has gradually encroached upon the river since the year 1840 or thereabouts.

In none of the deeds under which the plaintiff claims title was the locus described or mentioned as a "way." But in one deed of premises, westerly of these, the defendant contended that the locus was called a town way. This was denied by the plaintiff, who contended that, from all the evidence in the case, it was clear that there was a misdescription in this deed, and that the recital was clearly erroneous; and this question was argued to the jury by counsel on both sides.

It appeared that, by vote of the board of mayor and aldermen of Haverhill, passed in June, 1881, the superintendent of streets was directed to remove this building from the city landing No. 12, and that the destruction was accomplished under and in pursuance of this vote, and that the men who did the work were paid by the city. A copy of this vote is printed in the margin. ^[*]

The defendant asked the judge to rule that the action could not be maintained against the city for these acts, even if they constituted a trespass. The judge ruled that this defence was not open under the answer, which admitted that the removal was done by the defendant's agents.

The defendant also asked the judge to rule, that if the plaintiff's predecessors in title to the land northerly of the locus described said land in their deeds as bounded on the south by a "town way," "town landing," or "town land," the plaintiff is estopped to deny that a town way existed at that place at the date of such conveyance, and that either of the above terms is to be taken as an admission that the land upon the south was dedicated to or taken for public uses, so that the plaintiff would be estopped to deny the easement in the public. As before stated, no one of such deeds described the land on the south of the conveyed premises as a "town way," and the defendant expressly disclaimed any justification on the ground that it was a "town landing," and the judge refused to rule as requested, but did instruct the jury that they were to consider the recitals in all the deeds introduced, in determining where the location of the way in 1772 actually was. The defendant did not contend that any way existed, except as actually laid out by the selectmen in 1772.

The defendant also contended, and requested the judge to rule that those deriving their title through Gubtal took no further than was conveyed to her by the deed from Smith. The...