McCreary v. Boston & M.R. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: C. ALLEN, J.
• Citation: McCreary v. Boston & M.R. Co., 153 Mass. 300, 26 N.E. 864 (Mass. 1891)
• Decision Date: 27 February 1891
• Parties: McCREARY v. BOSTON & M.R. CO.

153 Mass. 300

26 N.E. 864

McCREARY v. BOSTON & M.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1891

COUNSEL

C.G. Fall and F.N. Nay, for plaintiff.

Solomon Lincoln, for defendant.

OPINION

C ALLEN, J.

If the plaintiff's intestate was on the defendant's track without right, the action is not maintainable, unless there was willful or reckless misconduct on the part of the defendant or of its agents. Wright v. Railroad Co., 142 Mass. 296, 301, 7 N.E. 866, 129 Mass. 440. The plaintiff contended that at the point where her intestate was killed the public had acquired by prescription a right to cross the tracks of the defendant. The defendant requested the court to rule that there was no evidence which would authorize the jury to find that he was rightfully upon the track. The court declined to give this ruling, but instructed the jury, upon this branch of the case, that the plaintiff could not recover, unless the deceased was rightfully crossing the track at the time of the accident, in the exercise of such prescriptive right, and submitted this question to the jury under instructions which appear to be unobjectionable in matter of detail, if the evidence was sufficient in law to sustain the burden of proof resting upon the plaintiff to establish a public right of crossing. This presents the principal question to be determined. Upon an examination of the testimony, we are constrained to the conclusion that it did not warrant a finding of such public prescriptive right. It was necessary for the plaintiff to show that there was a public use, continued uninterruptedly for the requisite length of time, which was adverse, and under a claim of right, and not merely a use which was tolerated or permitted by the railroad company. Prof. Washburn says: "The real point of distinction is between a tolerated or permissive user and one which is adverse, or as of right." Washb.Easem. *86. The burden of proof upon this point being upon the plaintiff, it was incumbent on her not merely to show an occasional use by persons who had no right to cross the track at that place, but a use which, in addition to other necessary elements, was adverse, and exercised as a matter of right. Sargent v. Ballard, 9 Pick. 251 256; Smith v. Miller, 11 Gray, 145, 148, 149. It is not necessary that a claim of right should be asserted in express terms. It may be inferred, provided the circumstances are sufficient to warrant such an inference. Blake v. Everett, 1 Allen, 248; Barnes v. Haynes, 13 Gray, 188. But the fact must exist that the public used the crossing as a matter of right. The fact that at the outset there was at a particular point on a railroad track merely a private farm crossing, established by agreement for the convenience of the owner of the land upon both sides of the railroad, would not be decisive to show that such crossing might not in the course of time become a public way by prescription. Weld v. Brooks, 152 Mass. ----, 25 N.E. 719. Such a fact, however, when it is found to exist, suggests an explanation of any occasional crossing by other persons which may be shown, and naturally leads to a more careful examination of testimony to see whether such acts of crossing appear to have been really adverse. Moreover, such acts of crossing at an early period in the history of railroads, when trains were comparatively infrequent and slow, and when greater freedom was tolerated in being upon railroad tracks than is now consistent with safety or prudence, would perhaps have less significance than similar acts would have at present. Under such circumstances especially something further than occasional unopposed acts of crossing must be shown in order to establish a public right of crossing. The acts of crossing must be in number, character, and extent of time such as fairly to show that they were not merely incidental to the private right of crossing, but that they were in the assertion and exercise of a public right. Ordinarily, of course, the question must be submitted to a jury whether a public use of this character and of the required duration of time has been shown. But in the present case, after the best consideration we can give to the subject, all the facts testified to seem to be consistent with the view that there was merely a private crossing, which strangers to the right were allowed more or less to use.

The testimony of the witness Phillips was nearly all that there was in the case bearing upon this view. His testimony upon the matter now important to be considered was very general and vague. According to his account, when the railroad was built, about 50 years ago, Graves, who was the owner of the land on both sides of the track, made an arrangement with the railroad company for a private crossing; and the crossing was accordingly built, being graded up to the level of the track and planks were placed between the rails by the company. He had bars on one side of the railroad, which he kept up. The brother of the witness subsequently became the owner of the land; at what time is not stated. He also kept the bars there, but people kept taking them down, and then he put up a gate. The gate was kept shut. The Eastern avenue, as the way approaching the railroad is called, has not been worked as a highway upon the eastern...