Moffatt v. Kenney

• Decision Date: 15 October 1899
• Citation: 174 Mass. 311,54 N.E. 850
• Parties: MOFFATT v. KENNEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 311

54 N.E. 850

MOFFATT v. KENNEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 15, 1899

COUNSEL

C.W. Bartlett and J.D. Colt, for plaintiff.

E.R Champlin and G.L. Wilson, for defendants.

OPINION

KNOWLTON J.

The place where the plaintiff fell was not a public way for whose condition the city of Boston was responsible. In this commonwealth there can be no public way by dedication without an acceptance of it by the public authorities. Before the enactment of St.1846, c. 203, such an acceptance could be shown either by a vote to accept or by circumstances giving rise to a strong implication, such as frequent and long-continued use by the public, and repairing, lighting, or other significant acts of persons authorized to represent the city or town in that behalf. Hemphill v. City of Boston 8 Cush. 195. While public use may be important as evidence, it is not, of itself, sufficient to show such an acceptance. Since the enactment of the statute above referred to, there can be no effectual acceptance without a laying out of a way in the ordinary mode prescribed by the statutes. Pub.St. c. 49, § 94; Hobbs v. Inhabitants of Lowell, 19 Pick 405; Bowers v. Manufacturing Co., 4 Cush. 332; Morse v. Stocker, 1 Allen, 150; Hayden v Stone, 112 Mass. 346; Guild v. Shedd 150 Mass. 255, 22 N.E. 896. In the present case there is no evidence tending to show an acceptance, except the evidence of public use, and that alone will not warrant a finding that the street is a public way by dedication. There is no evidence that it is a public way by prescription. Durgin v. City of Lowell, 3 Allen, 398; Sprow v. Railroad Co., 163 Mass. 330, 39 N.E. 1024. By the indenture of April 1828, the owners covenanted that the land now known as "Byron Street" should be forever "reserved and kept open" for a public street, "and ceded to the city government as such whenever they will accept the same." This was an agreement among the landowners that the public should be permitted to use it until it should be accepted as a street by the public authorities. The public authorities never accepted it. The evidence tends to show that in 1838 the public began to use it under this license, and continued their use up to the time of the accident. In the absence of evidence to show the contrary, it must be assumed that this use, which began under a license, has continued to be permissive. There is no evidence that it was ever under a claim of right. An adverse right to an easement cannot grow out of a mere permissive enjoyment. Bachelder v. Wakefield, 8 Cush. 243, and cases cited. There is no evidence that the plaintiff was using the way by invitation. She was walking there, as one of the public, under a license, and had the ordinary rights of a licensee. There is a class of cases where one is upon private land without an invitation, but by permission, and for his own convenience, in which there is a representation, express or implied, that constitutes an inducement to a licensee, and creates a duty on the part of the landowner to use due care to have the place as represented. For illustration: If one passing over land as a mere licensee, for his own purposes, should be told by the owner that he would find a certain course safe and convenient, and should walk there, the representation of the owner would impose upon him a duty to use reasonable care to have the place safe for the person acting on his statement; or, if he should represent a way across his land to be a public street, his representation would be equivalent to a statement that the place was safe and convenient for travelers, and it would be his duty towards one induced to use it by his representation to keep it as safe as if it were a public street. See Plummer v. Dill, 156 Mass. 426-430, 31 N.E. 128; Sweeny v. Railroad Co., 10 Allen, 368; Holmes v. Drew, 151 Mass. 578, 25 N.E. 22; Murphy v. Railroad Co., 133 Mass. 121; Hanks v. Railroad Co., 147 Mass. 495, 18 N.E. 218. This is not such a case. The way was doubtless opened for the benefit of the owners and occupants of the adjacent lands, and it has never become a public street. The presumption is that it was maintained for the use of these occupants and such other persons as had occasion to visit them, and that the use of it by the public was merely permissive. Bowers v. Manufacturing Co., 4 Cush. 332; Durgin v. City of Lowell, 3 Allen, 398; Sprow v. Railroad Co., 163 Mass. 330, 39 N.E. 1024; Stevens v. Nichols, 155 Mass. 472, 29 N.E. 1150; Pearson v. Allen, 151 Mass. 79-82, 23 N.E. 731. Moreover, for 30 years before the accident there had been a representation...