Puffer v. City of Beverly

• Decision Date: 05 February 1963
• Citation: Puffer v. City of Beverly, 345 Mass. 396, 187 N.E.2d 840 (Mass. 1963)
• Parties: Winthrop M. PUFFER et al. v. CITY OF BEVERLY et al. Frank H. WETMORE et al. v. CITY OF BEVERLY et al. Julius B. SCHLIEMANN et al. v. CITY OF BEVERLY et al. Philip C. MURFITT et al. v. CITY OF BEVERLY et al.
• Court: Supreme Judicial Court of Massachusetts

Page 840

187 N.E.2d 840

345 Mass. 396

Winthrop M. PUFFER et al. v.CITY OF BEVERLY et al.

Frank H. WETMORE et al. v.CITY OF BEVERLY et al.

Julius B. SCHLIEMANN et al. v.CITY OF BEVERLY et al.

Philip C. MURFITT et al. v.CITY OF BEVERLY et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 6, 1962.

Decided Feb. 5, 1963.

Robert W. Reardon, Salem, for petitioners.

Carl V. Joslin, City Sol., for respondents.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

The owners ¹ of four parcels of shore land in Beverly seek to register their titles.The Land Court judge determined (a) that certain of these parcels were affected by a public landing at Ober Street Cove, and (b) that none of the parcels was affected by an alleged ancient way or prescriptive easement.The landowners in their bill of exceptions present various questions relating to the determination about the landing.The city presents its exceptions to the denial of requests for rulings pertinent both to the landing and to the alleged ancient way.The city asserts that the public landing and the ancient way still exist.Other issues are no longer in dispute.

The accompanying plan shows roughly the general area surrounding the loci.The public landing, which the judge found to exist, is near the point marked Ober Cove.The approximate alleged location of the ancient easement is indicated by a dotted line.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Concerning the landing, the Land Court judge found the following facts:

'The town of Beverly made two layouts relating to Ober Street and also to a landing place extending from the southerly extremity of Ober Street to low water mark.One was made in 1775 * * * and the other in 1803 * * *.'Ober Street is a public street and there is no controversy as to its location.There also is no question as to the location of the boundary lines of the landing ² as then laid out.

'The selectmen of Beverly in their taking of 1775 stated, 'Whereas said way has been emproved time out of mind without molestation till of late we award no damages to any person.'* * * It may be presumed that these words applied as well to the landing and that even at that time use was made for landing purposes.That the cove has been used for landing purposes without let or hinder for at least the last seventy odd years tends to give rise to a presumption that the molestation [thus] suggested * * * has long since ceased.The physical features of the cove, with its shelter from the elements and accessible approach to the beach and water, suggest it as a natural landing place and one which could have been used as such from early times.'

Acting under G.L. (Ter.Ed.)c. 88, § 16, ³'the county commissioners * * * on October 26, 1954, proceeded to bound and define a public landing at Ober Street Cove in accordance with * * * the purported layouts of 1775 and 1803 * * *.The proceedings purported to lay out an existing public landing and not to create one by eminent domain * * *.'The city at times cleaned the beach of Ober Cove in 1958.It 'maintained a rubbish disposal barrel there as long ago as 1935.'The judge ruled 'that a public landing place existed at the time of the county commissioners' action * * * and that by * * * [that] action * * * a public landing place now legally exists' as claimed.

The judge made the following findings concerning the alleged ancient way.Present Beverly was a part of the town of Salem in 1644.Part of Beverly was set off from Salem in 1668 and part in 1753.On November 13, 1644('at a towne meeting of the 7 men, Mr. Endicott, Mr. Gardner, Mr. Hathorne, Peter Palfrey, Goodm.Lord, Jeffrey Massy, Henry Bartholemew'), the town of Salem passed an order: 'that all such as have houses & lotts next the waters side in any place in the towne shall mayntayne a good way both for horse and man of eight foote broad at least upon payne of presentmt. & such a fine as the towne or Court shall impose upon such as are defective.'In 1646 a committee ⁴ was appointed (at a general town meeting on October 26) to 'lay out a way between the Ferry at Salem & the head of Jeffryes Creek & that it be such a way as men may travell on Horse back & drive Cattle & if such a Way be not found, then to take speedy course to sett up a foot Bridge at Mackrell Cove,' and later that year the committee 'reported back * * * that it had 'made it sufficient."In 1884 the Beverly town committee on beaches reported that it was 'very evident that the above committee laid out such a way, from the fact that it is still in existence and well defined * * * as near as we are informed.'

On January 31, 1955, the 'board of aldermen of * * * Beverly passed an order requesting the county commissioners * * * to define and bound a 'way for horse or man of eight foot broad at least' next to the salt water as ordered by Salem town meeting on November 13, 1644 * * *.An order of taking by [the] county commissioners * * * of an ancient way was recorded on November 14, 1956 * * *.This order purported to relocate a way eight feet wide * * *.The whole of this way lies easterly of Bay View Avenue * * *.No part of it lay * * * on any part of the properties here under consideration.'

The judge heard testimony as to usage and as to the present condition of the way and took a view.He specifically found that the 'terrain, contour and natural characteristics of the properties * * * when related to [the] surrounding area do not lend themselves as reasonable sites for a 'good way' to say nothing of one eight feet wide.The way such as described by the most favorable witnesses is at best a narrow, winding, shifting, unimproved, slightly trodden, 'indicated' path which has never been used by horse or vehicle and is dangerous in places and all but impassable on foot.The sporadic use of the land by a few people * * * has not been of such a character as to create a public way by prescription.'The judge referred to testimony about various fences in the area in 1934 and to the 'meager' evidence 'as to houses and lots as they existed in 1644,' when they were 'much fewer in number' and 'such waterside lots, as there may have been * * * extended much farther back from the shore than now,' so that the location of any ways 'had wide latitudes, within reason, without resource to such an unsuitable site as presented by * * * [these] properties.'

The judge found that 'no such site was intended or adopted under the [1644] proceedings' and that no 'way was thereby created over the land described in the petitions.So far as * * * [these parcels are] concerned, the way has never been laid out by metes and bounds or courses and distances, nor monumented or located on the ground, nor is it shown or indicated on any maps or plans * * * in evidence.It was agreed 'that * * * Beverly has never expended any money, or done any acts, in connection with so-called ancient highway as it affects * * * these * * * loci.''

The judge also found that there was no practicable path between Bay View Avenue and the cove, 'that the dominant objective of travel at Ober Cove was to reach the cove; that Ober Street was the natural and nearly the exclusive means of reaching it; [and] that occasionally some person, at times, would venture across private property * * * not in the exercise of a public right.In this they acted in a manner more consistent with permission or toleration rather than by acquiescence or as a matter of right.'He ruled 'that no rights of way * * * as claimed * * * now exist over any part of the * * * [loci] other than over Ober Street.'In consequence the court denied various city requests for rulings.

As to both the ancient way and the public landing the judge referred, to some extent, to 'the Perley Report, so-called * * * an officially authorized report claimed to have been made by * * * [Mr.]Sidney Perley who * * * was a member of the Massachusetts Bar * * * [and a Land Court] examiner * * * now deceased.The original of the report is not available and is reputed to have been sunk * * * with the * * * Lusitania.A document purporting to be an accurate copy of the Perley report * * * in the custody of the commissioner of public works * * * of Beverly, was introduced in evidence,' subject to the landowners' exceptions.⁵⁵ A plan found accompanying the Perley report was produced for examination at the request of the landowners' counsel and was introduced without objection.

1.The landowners' exception to the use of the Perley report need not be considered in connection with the question of the alleged ancient way.The judge's decision, and our decision, on that issue are in favor of the landowners.With respect to the Ober Street landing the judge's use of the report in his decision appears to have been to refer (a) to the fact that portions of the report 'relate to public landing places and ancient public rights of way,'(b) to the inaugural address of the 1902 mayor of Beverly, (c) to the report on January 4, 1902, of the city solicitor concerning certain petitions to establish public landings, and (d) to the plan accompanying the report.A copy of each of these documents, other than the report itself, was admitted in evidence, apparently without objection.Certified copies of the principal documents relating to the Ober Street landing, the 1775 and 1803 layout locations, were set out in the Land Court examiner's supplemental report.We perceive no way in which the use of the Perley report, even if inadmissible, could have been prejudicial or more than cumulative testimony.⁶There is thus no occasion to determine whether the report was admissible as an ancient document.SeeWigmore, Evidence (3d ed.) §§ 157, 1311, 1573, 2107-2108, 2137, 2145, 2145a;McCormick, Evidence, §§ 190-191, 298.

2.Upon the facts found by the judge, the city's requests for rulings relating to the alleged way were...