Murphy v. Commonwealth
| Decision Date | 27 February 1905 |
| Citation | 187 Mass. 361,73 N.E. 524 |
| Parties | MURPHY et al. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John M. Raymond and Philip A. Kiely, for petitioners.
Robert G. Dodge, Asst. Atty. Gen., for the Commonwealth.
This was a petition for damages for the taking of 22,000 square feet of land lying on the ocean side of Nahant Neck, between Nahant Road and the sea, in the general locality known as 'Long Beach.' The taking was made by the metropolitan park commissioners on September 26, 1900. The respondent admitted the taking, but denied title in the petitioners. They claimed title under Thomas B. Murphy, who died on September 10, 1861, and proved that whatever title he had in the land was in them at the time of the taking, except so far as it may have been lost through adverse possession by the town of Nahant. Their evidence tended to show that the land was part of a tract of four acres called 'Lindsey Marsh.' The respondent claimed that Daniel Fairchild, who deeded to Thomas B. Murphy on September 23, 1859, was then disseised; that the land was no part of Lindsey Marsh; that Lindsey Marsh was wholly on the harbor side of the Nahant Road, and did not extend across the road and on both sides of it, and that the land was part of Long Beach, so called; and that it was owned by the town of Nahant.
In answer to specific questions, the jury found that Murphy's grantor was not disseised when he gave his deed that Lindsey Marsh was on both sides of the Nahant Road on Long Beach, and that the land was a part of Lindsey Marsh. The verdict was for the respondent, and the case is here upon a bill of exceptions which comprises certain exceptions taken by the petitioners at the jury trial, and an exception taken by them upon the hearing on a motion for a new trial.
Several of the exceptions were to the admission of evidence. Before examining them in detail, it is well to state that the territory now Nahant was a part of Lynn until March 29, 1853, when Nahant was incorporated as a separate town by St. 1853, p. 425, c. 114; the dividing line between the two municipalities being a line drawn east and west across the course of Long Beach, and running at right angles with the course of said beach from a certain signpost, which then gave the length of the beach, to low water on the ocean side, and at right angles with the course of the same beach from the same signpost to low water on the harbor side. See St. 1853, p. 425, c. 114, § 1. Long Beach was about 2 1/2 miles long--2 in Nahant and the rest in Lynn. It was undisputed that the town of Nahant owned much land on Long Beach, near to the land described in the petition, and running toward Nahant several thousand feet on Nahant Road; all of the land being uninclosed and mostly vacant, and not built upon or improved by the town itself, although its selectmen had leased or rented two adjoining parts of it--one to one Soule, and the other to one Massey.
The deed of September 23, 1859, to Murphy, fixes the northwest corner of the land deeded as at the central stone monument between Lynn and Nahant, and describes a parcel of land lying on the easterly side of what commonly is called the 'Nahant Road,' and between that road and the ocean, 8 rods wide on the westerly end, and 4 rods on the easterly end, where it touches the sea; its southerly line being 12 rods in length, and its northerly line 15. There was thus left between this land and the division line of Lynn and Nahant a triangular piece of land, about 150 feet in width at high-water mark, and decreasing in width to nothing at the northwest corner of the land deeded. The deed recites that the land conveyed is 'a certain parcel of marsh and beach land being part of the eastern half of the marsh and beach known by the name of 'Point Close' or Lindsey Marsh * * * said marsh being now covered by the sand of Long Beach.'
The evidence tended to show that the land leased to Soule was bounded northerly by the town line, easterly by the ocean, and westerly by the Nahant Road, and that it extended so far southerly as to include all of the land to which the petitioners claim that they had title at the time of the taking, and considerable other territory, and that it was bounded on the south by the land leased to Massey; that neither of these parcels was inclosed by fences; and that the general nature of the occupation of each was that of a place for seashore resort. On the Soule parcel was a building owned by the lessee, called 'Hotel Nahant,' the exact location of which was in dispute. Although the jury found that the land in question was part of Lindsey Marsh, we think it plain that during the period to which the evidence was addressed it also was a part of the Long Beach.
The books of the town treasurer of Nahant, under the caption, 'Land Rent Long Beach,' show entries of the receipt of sums of money for the years 1859-1900, both inclusive, with the exception of the years 1862, 1868, 1873, 1878, 1884, 1892, and 1893. The entries down to and including 1882 tend to show that the amounts received were paid by Samuel Soule. Those from 1883 to 1891, inclusive, tend to show that the payments were made by S. Soule & Son, by S. N. Breed & Co.; those of 1894 and 1895, that the payments were made by S. N. Breed & Co.; and those for 1896 and after, that the payments were made by D. L. Trafton. No entry other than the caption, 'Land Rent Long Beach,' appeared on the books, either to identify the location of the premises for which rent was received from Soule, or the other persons named, or the quantity of land. The books were produced in court by the town treasurer, then serving his second year, and who testified that the rents were received for land on which stood the Hotel Nahant and the Picnic Park buildings, and that there was nothing on the books to tell where the land was located, other than somewhere on Long Beach. The petitioners excepted to the admission in evidence of the treasurer's books with the above-mentioned entries.
Frank Soule, called by the respondent, testified to the death in 1890 of his father, Samuel Soule; that his father was in the hotel business, and that his hotel was located on the beach, close to the Lynn line, on the ocean side of the road leading to Nahant; that the hotel occupied land extending from the Lynn line about 350 feet toward Nahant; that the land was uninclosed, and the buildings did not cover the whole of it; that he was in business with his father after 1876; that the firm leased the land upon which the hotel and buildings stood; that he had attempted to find the old leases, and had found one for the year 1880, and that the others had been lost; that they always hired the same land continuously from year to year, and hired it from the town of Nahant, and paid rent to the town, and never to anybody named Murphy or claiming under Thomas B. Murphy; that his father had told him that he began to hire the land in 1856; that his own recollection went back into the sixties, and that his father was continuously in possession down to 1890, and that from the time of his own recollection down to 1890 nobody besides his father and himself was in possession of the land; that they occupied from the Lynn line about 350 feet; and that during all the time that they were there the possession of the land was never interfered with at all by the Murphys. The same witness also testified as to the size and location, and use and the time of erection, of different buildings on the land; that the land between the Lynn line and the buildings was occupied by walks from the roadway to the hotel, but vacant mostly, and was occupied by his father and himself in connection with the hotel, and that the Massey land was between 350 and 400 feet from the Lynn line; and that he had occupied under the lease which he produced, and which is dated February 28, 1880, and is for the term of five years from January 1, 1880, and also under another lease, which was produced by another person, dated July 2, 1883, and which purports to be made by the town of Nahant, by its selectmen, to Samuel Soule & Son, for the term of 10 years from March 18, 1883. Each of these two leases purported to be signed by the selectmen of Nahant and by the Soules. The two leases were admitted in evidence against the objection of the petitioners, and they excepted.
Certain votes of the town of Lynn passed on March 18, 1837, and votes of the town of Nahant passed on April 16, 1853, March 12 1859, March 10, 1860, March, 1864, and March, 1870, were admitted in evidence against the objection of the petitioners, and they excepted. The votes of Lynn were that five persons named 'serve as beach committee for the ensuing year,' and 'that no person be allowed to take seaweed from the bay side of Long Beach for the ensuing year.' The Nahant vote of April 16, 1853, seems to have been passed at the first meeting after the incorporation of the town, on March 29, 1853, and was 'that the selectmen be empowered and directed to take all legal measures for the preservation of Long and Short Beaches.' The Nahant votes of March 12, 1859, are longer. The first begins with a recital that 'whereas the ownership and fee of the beaches, shore and strand surrounding the town * * * are claimed as the property of the town, and whereas divers persons owning land abutting on said beaches, shore and strand have obstructed the access thereto by erecting fences or buildings thereon, or otherwise, * * * and by continuing such obstructions may possibly acquire rights adverse to those of the town and of the public, voted, that the town claims to be the owner in fee of all the said beaches, shore and strand, * * * subject always to the public rights of...
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