Morris v. Whipple

• Decision Date: 26 February 1903
• Citation: Morris v. Whipple, 183 Mass. 27, 66 N.E. 199 (Mass. 1903)
• Parties: MORRIS v. WHIPPLE et al.
• Court: Supreme Judicial Court of Massachusetts

183 Mass. 27

66 N.E. 199

MORRIS v. WHIPPLE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1903

COUNSEL

Andrew Fiske and Chas. H. Fiske, Jr., for plaintiff.

Burdett & Snow, for defendants.

OPINION

BRALEY J.

The defendants asked for a ruling that upon all the evidence in the case the plaintiff was not entitled to recover, and their principal contention is that there was no evidence for the jury tending to show any negligence on their part whereby the plaintiff was injured. While the defendants, as lessees and occupants of their premises, might temporarily occupy so much of Boylston street as adjoined their estate if such occupation by them was connected with its use as a way, this right was not exclusive, but subject at all times to the easement of the public therein. As between them and travelers lawfully using the street, their use of it for their special benefit must be proper and reasonable, so as not to unnecessarily obstruct or render the way unsafe for public travel. It is clear that in passing upon this question the location and use of the way become important. What might not be an obstruction, or more than a mere temporary inconvenience to travelers, and hence not an unlawful occupation of a highway infrequently used by the public, and in a sparsely settled community, might become, in a village or city, where the public ways were more largely and frequently traveled, such an annoyance and impediment as not to be justifiable except for a very short period of time; and such a restricted occupation may so interfere with the rights and necessities of citizens generally in their free use of the highway as to make it reasonable to demand the immediate removal of any object therein that may be an obstruction. It follows that the reasonable use by an abutter for his special benefit of a highway that adjoins his land may be so limited in extent as to allow of such use for only a very short period of time, in order not to obstruct and interfere with the easement of the public. What may or may not be a reasonable and proper use by an adjoining owner of a public way, and in connection with his land, must depend upon the circumstances of each case, and no inflexible rule can be laid down. What might be a reasonable and proper use in one case would, under other conditions become an unlawful interference with the rights of travelers and obstruction of the way. Judd v. Fargo, 107 Mass 264, 267, and cases cited; Smethurst v. Barton Sq. Church, 148 Mass. 261-266, 19 N.E. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550. If it be conceded, for the purposes of this case, that the defendants had a right to use the sidewalk on Boylston street, on which their property abutted, for the purpose of laying...