Parks v. Bishop

• Decision Date: 08 May 1876
• Parties: Luther Parks v. Robert Bishop
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 340

Luther Parks v. Robert Bishop

Supreme Court of Massachusetts

May 8, 1876

Suffolk. Bill in equity alleging that the plaintiff was the owner of the fee in the soil and of a right of way in a passageway leading from Purchase Street by land of the plaintiff and to a shop of the defendant, which adjoined the rear of a store of the defendant on Atlantic Avenue; and praying that the defendant might be restrained from using the way as appurtenant to the land on which that store was built or for the purpose of passing, or of carrying merchandise or other things, between that store and Purchase Street. The answer alleged that the defendant had acquired a right to such use by adverse possession.

Hearing before Wells, J., who ordered an injunction to issue, and reserved the case for the consideration of the full court upon a report, the material part of which is stated in the opinion.

Bill dismissed.

W. G Russell & G. Putnam, Jr., for the plaintiff.

S. J. Thomas, for the defendant.

Gray, C. J. Devens & Lord, JJ., absent.

OPINION

Gray, C. J.

The report of the judge, before whom this case was heard in the first instance, states the facts proved at the hearing, and his decision that the use of the way in question by the defendant, in the manner and for the purpose complained of, was not justified by any right acquired by Lakin (under whom the defendant claims) through the use of the way by him as stated in the report, and that an injunction should issue, subject to the revision and determination of the full court upon the question, among others, "whether Lakin, upon the facts stated, had acquired such a right of way as to constitute a good defence." The report, being on the equity side of the court, submits to our revision all inferences of fact, as well as conclusions of law. Wright v. Wright, 13 Allen 207, 209. Stockbridge Iron Co. v. Hudson Iron Co. 102 Mass. 45, 47.

When a right of way to certain land exists by adverse use and enjoyment only, although evidence of the exercise of the right for a single purpose will not prove a right of way for other purposes, yet proof that it was used for a variety of purposes, covering every purpose required by the dominant estate, in its then condition, is evidence from which may be inferred a right to use the way for all purposes which may be reasonably required for the use of that estate while substantially in the same condition. Ballard v Dyson , 1 Taunt. 279. Cowling v. Higginson, 4 M. & W. 245. Dare v. Heathcote, 25 L. J. (N. S.) Exch. 245. Williams v. James, L. R. 2 C. P. 577. Sloan v. Holliday, 30 L. T. (N....