Pinkerton v. Inhabitants of Randolph

• Decision Date: 21 October 1908
• Citation: 85 N.E. 892,200 Mass. 24
• Parties: PINKERTON v. INHABITANTS OF RANDOLPH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 24

85 N.E. 892

PINKERTON v. INHABITANTS OF RANDOLPH et al.

Supreme Judicial Court of Massachusetts, Norfolk.

October 21, 1908

COUNSEL

John V. Beal, for appellants.

Warren W. Hart, for appellee.

OPINION

HAMMOND J.

This case is before us upon an appeal taken by the defendants from a final decree overruling their exceptions to the report of the master, and allowing damages against the defendants as found by him. Although one of the purposes of the bill was to obtain an injunction against future trespasses, it now appears from the record that since the bill was filed Walves avenue has been legally laid out; and hence the only question before us respects the matter of damages suffered by the plaintiff before the filing of the bill, and the extent to which any of the defendants are answerable.

The question whether the ruling of the master that for the acts committed by the water commissioners under the vote of the town passed in 1906, directing the commissioners to extend the water main in Wales avenue to Cross street and providing for the issue of the notes of the town to the amount of $2,000 to defray the expense, neither the town nor the commissioners were answerable to the plaintiff, is not raised by the defendants' exceptions; and therefore we have no occasion to pass upon its correctness.

It appears from the report that at the hearing before the master the defendants contended 'that the plaintiff suffered on damage from the destruction of the trees for the reason that they stood within the limits of the private way, and that the plaintiff had no permanent right to maintain them there, as the users of the private way had the right to remove them at any time.' The master ruled that the defendants being trespassers this defense was not open to them, and that the plaintiff was entitled to recover damages as though he had a permanent right to maintain the trees in the avenue.

In this the master was wrong. Even if the defendants were trespassers, they were entitled to show, as bearing upon the question of damages, the nature of the plaintiff's right which had been invaded. They could do this, not for the purpose of justifying the trespass, but as throwing light upon what thing the plaintiff had lost and the consequent amount of the loss.

The ruling of the master that the plaintiff owned to the center of the avenue was correct. There can be no doubt that by the express language of the deed from Upham and another, dated February 22, 1900, conveying to the plaintiff the westerly lot now owned by him, the fee in the northerly half of that part of Wales avenue adjoining the lot was included in the bescription; it was a strip of land 20 feet wide and 238 feet long, 'more or less.' The language of the deed conveying to the plaintiff the easterly lot is not however so clear. The first boundary line runs 'westerly by said avenue,' and must be construed to be the center line of the avenue unless the deed by explicit statement or necessary implication requires a different construction (Peck v Denniston, 121 Mass. 17, 18); and the fact that the monument at one end of the street boundary is stated to be in the line of the street is not now regarded as necessarily requiring such different construction. Such a care ordinarily presents a contradiction of monuments or boundaries, and the general rule must prevail. Everett v. Fall River, 189 Mass. 513, 75 N.E. 946. The present case cannot be distinguished in principle from that case and must stand with it. That case must be regarded also as directly overruling Sibley v. Holden, 10 Pick. 249, 20 Am. Dec. 521. See, also, Cold Spring Iron Works v. Tolland, 9 Cush. 492, and McKenzie v. Gleason, 184 Mass. 452, 69 N.E. 1076, 100 Am. St. Rep. 566. The deed of the easterly lot, therefore, conveyed to the center of the avenue.

But even if the plaintiff owned to the center of the avenue, it is clear from the facts appearing in the report that the abutters thereon had a right of way over its whole length and breadth. It follows that the plaintiff had no permanent right to maintain the trees and shrubbery upon the part of the avenue of which he was seized in fee. His right to maintain them was subject to the right of the...