Turner v. Fitchburg R. Co.

• Decision Date: 04 January 1888
• Citation: 14 N.E. 627,145 Mass. 433
• Parties: TURNER v. FITCHBURG R. Co.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 433

14 N.E. 627

TURNER v. FITCHBURG R. Co.

Supreme Judicial Court of Massachusetts, Franklin.

January 4, 1888

COUNSEL

Perkins & Lyman, for plaintiff.

The agreed facts show all the elements of a prescriptive title. Pub.St. c. 122, § 2; Blake v. Everett, 1 Allen, 248. The user of a grantee may be tacked to that of his grantor. Leonard v. Leonard, 7 Allen, 277. It is not understood that any question of permissive use or license is here raised by the defendant; but if it relies upon such defense, it is incumbent upon it to prove affirmatively that the use of the easement was under some license or indulgence inconsistent with the plaintiff's claim of right, ( Smith v. Miller, 11 Gray, 145,) and to rebut the presumption of a non-appearing grant, (Barnes v Haynes, 13 Gray, 188.) The principal question, then presented by this case is, can a right of way by necessity or prescription be acquired by an individual over the location of a railroad? And is the acquisition of such right contrary to public policy, or is the use of its location for railroad purposes inconsistent with the acquisition of such right of way? The only statute touching this subject is the statute of 1861, c. 112, § 100, re-enacted in Pub.St. c. 112, § 215; but it was held in Fisher v. Railroad Co., 135 Mass 107, that this statute did not apply to private way. That it is not necessary to take from the farmer the right to cross the railroad track from one part of his farm to the other, is shown by the fact that, either by statute or custom, this right has always been exercised by farmers throughout the civilized world. Experience amply disproves the fact that the existence of such right of way is a substantial obstruction of its right to run and maintain its road. There are now thousands of farm-crossings like the plaintiff's in use in this state. Since 1841 the county commissioners have had power, when land is taken for a railroad, to establish and order ways to be laid out across it for the benefit of the owner whose land is taken. See St.1841, c. 125, §§ 1, 3; Gen.St. c. 63,§ 40; Pub.St. c. 112, § 113. The public may acquire a prescriptive right to a highway across a railroad location. Railroad Co. v. Page, 131 Mass. 391; Railroad Co. v. Boston, 140 Mass. 87, 2 N.E. 943; Com. v. Railroad Co., 135 Mass. 550. A public right of way is certainly more of an obstruction than a private right of way. Such crossings as are reasonably required may be provided by agreement, (i.e., grant of the parties.) Gas-Light Co. v. Railroad Co., 14 Allen, 444. The legislature has thought it necessary to pass a statute to prevent the acquisition of rights by prescription in railroad locations. Pub.St. c. 112, § 215. A right of way across a railroad location may be acquired by reservation, (Eames v. Railroad Co., 105 Mass. 193,) and it will hardly be denied that such a way cannot be created by grant. That a railroad corporation may, to the extent of its interest in the land, grant a private way over its road, is unquestionably the law. Gay v. Railroad Co., 141 Mass. 407, 6 N.E. 236. There is no legal inconsistency in the existence of the prescriptive right of way over a railroad location, for prescription is founded on the supposition of a grant,--whatever may be granted may be prescribed for. Washb. Easem. *97. Twenty years of appropriate use is sufficient to establish a public way across a railroad, or the grant of a private way. Gay v Railroad Co., supra. See Smith v. Railroad Co., 142 Mass. 21, 6 N.E. 842. In Wright v. Railroad Co., 142 Mass. 296, 7 N.E. 866, the court assumed that such prescriptive right could be acquired. Likewise in Deerfield v. Railroad Co., 144 Mass. 325, 11 N.E. 105. The precise question arose in Railroad Co. v. Waterbury, 23 Conn. 101; and see Railway Co. v. Allen, 22 Kan. 285. Jackson v. Railroad Co., 25 Vt. 150, is in conflict with the decisions of numerous other courts. See Blake v. Rich, 34 N.H. 282; Washb. Easem. 159, 214; Lance's Appeal, 55 Pa.St. 16; Evans v. Haefner, 29 Mo. 141; Railroad Co. v. Burkett, 42 Ala. 83; 1 Redf.R.R. 247; Railroad Co. v. Kip, 46 N.Y. 546; Cemetery v. Railroad Co., 68 N.Y. 591. It is believed that the right in an adjoining owner to cross a railroad exists, where it does not interfere with the reasonable enjoyment of its location by the corporation for railroad purposes. No good reason seems to exist why the same rule should not apply where the fee is held by the railroad company. The defendant owned the fee in Gay v. Railroad Co., supra. See Bemis v. Springfield, 122 Mass. 110, 118. As to right of way by necessity: All the elements necessary for acquiring a right of way by necessity seem to exist in the present case. Washb. Easem. 43, and cases cited in note; 3 Kent, Comm. 422; Leonard v. Leonard, 2 Allen, 543; Brigham v. Smith, 4 Gray, 297. The plaintiff, in effect, is deprived of the use of over two acres of his land, unless he has a right of way by necessity or by prescription. See Carbrey v. Willis, 7 Allen, 364; Randall v. McLaughlin, 10 Allen, 366; Buss v. Dyer, 125 Mass. 287; 2 Wood, Ry. Law, 771. The statement in Presbrey v. Railway, 103 Mass. 1, that the land-owner has no right to cross the railroad to get to and from his estate, must be applied strictly to the facts of that particular case. Dolliff v. Railroad, 68 Me. 173, was an action for obstructing the plaintiff's drain, running over land of the defendant, the railroad owning the fee. The court held that the burden was upon the plaintiff to show that not only the drain was necessary, but that it was also necessary it should go through defendant's land. It appearing that a drain could be constructed for $175, without going through the defendant's location, judgment was ordered for defendant. The case was solely decided upon this point.

The deed from Hunt to the railroad company conveys merely a narrow strip of land over the premises of the plaintiff's grantor, and the consideration named, $450, is too slight to support the presumption that it was intended as a payment also for the tract of land south of the railroad. The rule of construction, expressio unius, exclusio est alterius, shows that if it was intended in effect to deprive the owner of the right of access to the south tract of land, the land conveyed to the company would have been bounded by the river. If there is any evidence which would warrant the finding, it must stand. Forsyth v. Hooper, 11 Allen, 419; Smith v. Collins, 115 Mass. 388. The finding is not to be set aside because on the same evidence the court might have been justified in finding otherwise. The burden is on the defendant to show that the finding was unmistakably wrong. Reed v. Reed, 114 Mass. 372.

George A. Torrey, for defendant.

This is an action of tort to recover damages for the disturbance of a right of way across defendant's railroad. In order to recover, the plaintiff must prove three things: (1) That he is entitled to the right of way across the land and location of the defendant; (2) that the defendant is unlawfully interfering with said right of way; (3) that he has adopted the proper remedy to recover damages for such interference. It is respectfully submitted that the plaintiff has failed in proving either of these three allegations. The defendant contends, in the first place, that the plaintiff at the time of the commencement of this action was not entitled to right of way across the locus. No right of way was reserved in the deed. On the contrary, the following clause was inserted in the conveyance, viz.: "The above consideration includes all damage done to my adjoining land by the construction of said railroad by said corporation." It is well-settled law that where a railroad cuts off a portion of land from the remaining land of the proprietor and no agreement is made regarding a passway, and none is ordered by the county commissioners, the whole value of the land so cut off is included in the estimate of damages for the land taken by the railroad company for its right of way. In other words, the value of the land so cut off is a part of the damages occasioned by the construction of the railroad, and the land-owner has no right to cross the said railroad. Presbrey v. Railroad Co., 103 Mass. 1; Tucker v. Railroad, 118 Mass 546; Railroad Co. v. Miller, 125 Mass. 1; Railroad Co. v. Sawyer, 7 Ill. 361; Railroad Co. v. Waldo, 70 Mo. 629; Reisner v. Union Depot Co., 27 Kan. 382; Sheldon v. Railway Co., 29 Minn. 318, 13 N.W. 134; Parks v. Railroad, 33 Wis. 413; Hartshorn v. Railroad Co., 52 Iowa, 613; Railroad Co. v. Anderson, 39 Ark. 167. This element of damage, therefore, was expressly waived by the clause above quoted from the deed of conveyance; or, more properly speaking, the consideration in said deed included not only the price of the land actually conveyed, but also compensation for the damages done to the land which was cut off by the railroad. It is clear, therefore, that the plaintiff's grantor reserved no right in this deed and had no rights whatever to the land conveyed to the railroad company after the delivery of said deed. It is an evident proposition of law, that where a parcel of land is sold for a specific purpose and conveyed without reservation, the law will not imply, in favor of the vendor, a right of way of necessity over or through such land inconsistent with the object of the purchase. See ELLSWORTH, J., in Seeley v. Bishop, 19 Conn. 128. Has the plaintiff since acquired a right of way by his user? It is submitted that he has acquired no such right, and that there are several legal difficulties in the way of such acquisition. The first position which the defendant desires to maintain is the broad proposition that no right of way can be acquired by prescription over the land and location of a...