Robinson v. Brown

• Decision Date: 24 November 1902
• Citation: 65 N.E. 377,182 Mass. 266
• Parties: ROBINSON v. BROWN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 266

65 N.E. 377

ROBINSON v. BROWN et al.

Supreme Judicial Court of Massachusetts, Worcester.

November 24, 1902

COUNSEL

John Duff, for appellant.

Ernest I. Morgan, Ralph A. Stewart, and Geo. S. Taft, for appellees.

OPINION

LORING, J.

This is a bill in equity by the plaintiff for a mandatory injunction directing the defendants to remove a fense or bars placed by them across a private way called 'Wheeler Lane.' Issue was joined, and after a hearing on the merits a decree was entered dismissing the bill. The plaintiff took an appeal, and requested the judge by whom the suit was heard to report the facts found by him. In accordance with that request, the judge filed this report: 'I find that the public had a right of way in the Wheeler Lane, to pass and repass; that the respondents obstructed said way or lane by placing bars across the same, but upon their own land, and not upon any portion of the way adjoining petitioner's land.' The case is here on appeal from that decree, and on that report.

The parties have 'agreed that, upon the appeal to the supreme judicial court in the above-entitled cause, the fact may be taken as found by the court that the defendants placed an obstruction across Wheeler lane, so called, upon the land of the defendants, at the point where the plaintiff's land adjoins the land of the defendants on said lane, and that this agreement may be printed as part of the record upon appeal.' The question before this court on appeal from the superior court is the question decided by that court, and not the question which would have arisen had the court found a fact which does not appear to have been found by it. If the plaintiff had wished to bring up all questions of fact, she should have had a commissioner appointed to take the evidence. Not having done that, her only remedy was to apply to the judge who heard the suit to make a finding on this point, under Rev. Laws, c. 159, § 23. The finding of the judge that 'the public had a right of way in the Wheeler lane' disposes of the bill now before the court, in which the plaintiff alleges that she has a private right of way over Wheeler lane.

Since the argument the plaintiff has stated that she desires to amend her bill. In view of this fact, and the further fact that the parties have agreed to a fact not found by the superior court, and therefore not now before us, we shall discuss briefly the matters which seem likely to arise in the superior court.

It is plain that the plaintiff would not better herself by alleging that Wheeler lane was a public way, or by alleging the fact stated in the agreement of the parties. An abutter on a public way cannot maintain an action for an obstruction to the way in that part of it which is not opposite his land for the reason that in such a case his damage is not different in kind from that suffered by the public. This proposition is too well settled to admit of discussion, or to require any further statement. For cases where relief has been denied in case of such an obstruction of a highway or of a navigable stream, see Harvard College v. Stearns, 15 Gray, 1; Blackwell v. Railroad Co., 122 Mass. 1; Holman v. Inhabitants of Townsend, 13 Metc. (Mass.) 297, 299; Brainard v. Railroad Co., 7 Cush. 506 510; Smith v. Inhabitants of Dedham, 8 Cush. 522, 524; Blood v. Railroad Corp., 2 Gray, 137, 61 Am. Dec. 444; Brightman v. Inhabitants of Fairhaven, 7 Gray, 271; Hartshorn v. Inhabitants of South Reading, 3 Allen, 501; Fall River Iron Works Co. v. Old Colony & F. R. R. Co., 5 Allen, 221; Shaw v. Railroad Co., 159 Mass. 597, 35 N.E. 92; Nichols v. Inhabitants of Richmond, 162 Mass. 170, 172, 38 N.E. 501. See, also, in this connection, Smith v. City of Boston, 7 Cush. 254, and Stanwood v. City of Malden, 157 Mass. 17, 18, 31 N.E. 702, 16 L. R. A. 591. For two cases where the plaintiff's access to a public way was obstructed, and he was allowed to recover for an injury differing in kind, see Brayton v. City of Fall River, 113 Mass. 218, 18 Am. Rep. 470, and French v. Lumber Co., 145 Mass. 264, 14 N.E. 113, both of which were cases of navigable streams.

As to the fact agreed to by the parties, but not found by the court, the plaintiff would be no better off if the fact were in the case. The fact that the plaintiff is nearer the obstruction than others makes no difference. Her proximity to the obstruction makes the damage to her greater in degree, but not...