Pray v. Brigham

• Decision Date: 03 July 1899
• Parties: PRAY et al. v. BRIGHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 129

54 N.E. 338

PRAY et al. v. BRIGHAM.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1899

COUNSEL

T.H. Armstrong, for plaintiffs.

H.J Boardman and P.G. Bolster, for defendants.

OPINION

HAMMOND J.

This case was referred to a master to hear the parties, and inquire and state to the court all material facts bearing upon the issues of fact raised by the pleadings; and by the agreement of the parties it was ordered that "all findings and conclusions of fact made by the master" and "reported to the court shall be final and conclusive" upon the parties. After hearing the parties the master made his report, by which it appears that the title to the fee of the land in dispute is in the defendant and that whatever title the plaintiffs had rests upon prescription. The master then states the case thus: "The only issues, then, which are in controversy here, are 'First, have the plaintiffs and their ancestors in title ever acquired a right of way by prescription over the defendant's said land? and, second if they did acquire such right, has it been lost by abandonment or nonuser?' I am only to find and report such facts as bear upon those two issues." After making a somewhat lengthy statement of facts relating to these questions, he closes thus: "I am not aware that there are any other findings that I am required to report. As to whether or not there was such a user of the parcel of land in controversy by the plaintiffs, or those under whom they claim, for any period of time, as to render the user 'adverse,' and 'under a claim of right,' within the meaning of the law relating to prescriptive rights, I do not express any opinion, but leave that question, as well as the question of 'loss of right by abandonment,' to the court to determine, under the facts herein reported." The defendant objected to this report for the reasons, among others, that the master had not found whether the use was adverse, and whether there had been a loss of it by abandonment, but had left those questions to the court. Subsequently, on motion of the defendant, the report was recommitted, with instructions to find and report: First, "whether the use and enjoyment which the plaintiffs and their predecessors in title had of the premises of the defendant over which the plaintiffs claim to have an easement was in fact adverse, or had under a claim of right to make such use and have such enjoyment"; and, second, "whether the plaintiffs, in constructing their present building with the means of ingress and egress which are described in the report, intended to abandon any easement over the premises described in paragraph 2 of their bill, if any such easement had been acquired by them prior to the construction of said building." From this order of recommittal it is plain that the court regarded the question whether the use was adverse as a question of fact which it was...