Moran v. Gallagher

• Decision Date: 04 September 1908
• Citation: 85 N.E. 579,199 Mass. 486
• Parties: MORAN et al. v. GALLAGHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 486

85 N.E. 579

MORAN et al. v. GALLAGHER.

Supreme Judicial Court of Massachusetts, Worcester.

September 4, 1908

COUNSEL

David I. Walsh and Thomas L. Walsh, for plaintiffs.

Chas F. Baker and Emerson W. Baker, for defendant.

OPINION

KNOWLTON C.J.

This is a petition for a writ of certiorari to set aside an order of the police court of Fitchburg, revoking a license of the petitioners to sell intoxicating liquor to be drunk on the premises. The order was made under Rev. Laws, c. 100, § 15. It is undisputed that the Simonds Manufacturing Company, the applicant before the police court for a revocation of the license, had duly objected to the granting of the license, as an owner of real estate within 25 feet of the premises described in the application for the license. The only question that arises under the present petition is whether it was such an owner of real estate within the meaning of the statute.

It appears that it was the owner of the real estate on the opposite side of the street which was 40 feet wide at that point, and it was also the owner of the fee of the entire street in front of the property described in the application for a license. It had a perfect title to the land in the street, subject to an easement of the public to use it for travel. The precise question is whether the existence of such an easement in land within 25 feet of the premises described in an application for a license leaves the owner of the fee with such a title as is necessary to constitute him an owner of the real estate within the meaning of the statute.

There is no doubt that in a general sense he is the owner, and 'has a right to the enjoyment of any use of his estate consistent with the servitude to which it is subjected and may maintain trespass for any interruption of his enjoyment.' Van O'Linda v. Lothrop, 21 Pick 292-297, 32 Am. Dec. 261; Proprietors of Locks, etc., v. Nashua & Lowell Railroad Company, 104 Mass. 1-11, 6 Am. Rep. 181. He may build his cellar under the highway. Allen v. Boston, 159 Mass. 324-335, 34 N.E. 519, 38 Am. St. Rep. 423. See, also, Commonwealth v. Morrison, 197 Mass. 199, 83 N.E. 415, 14 L. R. A. (N. S.) 194. If the highway or street is discontinued his title immediately becomes absolute.

If the contention of the present petitioners could be maintained there would be ground for a similar contention against an owner of land subject to the easement of a private...