Middlesex Co. v. Lane

• Decision Date: 06 May 1889
• Citation: 149 Mass. 101,21 N.E. 228
• Parties: MIDDLESEX CO. v. LANE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 101

21 N.E. 228

MIDDLESEX CO. v. LANE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 6, 1889

May 6, 1889

HEADNOTES

COUNSEL

B.F. Butler and Prentiss Webster, for plaintiff.

C. Cowley, for defendants.

OPINION

HOLMES, J.

This is a bill brought to restrain the defendants from filling the plaintiff's mill-pond, and to compel them to remove earth by which a portion of the pond has been filled in. The master finds that the respondents own one lot of the land in question, styled "Lot A," and that they and their predecessors in title for more than 20 years before the filing of the bill in this case had the visible, notorious, distinct, and absolute adverse possession of another lot, styled "Lot B," which previously belonged to the plaintiff. This imports that the plaintiff was excluded from the premises, and no declaration of abandonment on its part was necessary in order to bar its title. The characteristic case of title by adverse possession is when it is acquired without the consent and against the will of the former owner. The evidence on which the master found as he did is not before us, so that much of the complainant's argument is beside the mark. If the land had belonged to the defendants before the filling, and they had built a dam excluding the plaintiff's water, the plaintiff's right of action, if it would have had one, (Storm v. Manchaug Co., 13 Allen, 10; Isele v. Bank, 135 Mass. 142,) would have been barred in 20 years, as in other cases of an interrupted easement, (Smith v. Langewald, 140 Mass. 205, 207, 4 N.E. 571.) In the present case the land had belonged to the plaintiff. The plaintiff was excluded from the land, and from the exercise of the right of flowage incident to its title at the same time, and lost all rights together. Bill dismissed.