Wellington v. City of Cambridge

• Decision Date: 01 March 1915
• Citation: 107 N.E. 976,220 Mass. 312
• Parties: WELLINGTON v. CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 312

107 N.E. 976

WELLINGTON v. CITY OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1915

COUNSEL

Edwin C. Jenney and Sumner Robinson, both of Boston, for petitioner.

Jas. F Aylward and Francis M. Phelan, both of Boston, for respondent.

OPINION

BRALEY J.

It was held in Wellington v. Cambridge, 214 Mass. 35, 100 N.E. 1096, that while the petitioner had acquired no right by grant to have vessels anchored at his wharf overlap other wharves bordering on the canal, there was evidence that such right had been gained by prescription. The evidence at the second trial that for at least twenty-eight years the forward hatches of vessels while unloading coal would overlap the adjoining wharf by more than two-thirds of their length, was sufficient to warrant the jury in finding the acquisition of an easement by prescription which did not interfere with any right of the public in navigable waters. Tufts v Charlestown, 117 Mass. 401; Commercial Wharf v Winsor, 146 Mass. 559, 562, 16 N.E. 560; Wellington v. Cambridge, supra. The respondent's fourteenth request accordingly could not be given, and the sixth, tenth, and twelfth requests in so far as applicable, were covered by the clear, full and accurate instructions, that 'if you find that his predecessors in title and he jointly or separately gained this right to overlap by uninterrupted, open, continuous adverse use under a claim of right acquiesced in by the other side, and that it was for twenty years or more that is sufficient, and is as good as if a deed had been passed giving it to him, and the burden is on the plaintiff to establish that by a fair preponderance of the evidence.' Whitney v. Wheeler Mills, 151 Mass. 396, 24 N.E. 774, 7 L. R. A. 613; Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028, 86 Am. St. Rep. 486; Graves v. Broughton, 185 Mass. 174, 176, 177, 69 N.E. 1083.

The failure to give the respondent's remaining requests as formulated not having been argued they are to be treated as waived, and the other exceptions to the instructions as saved and argued are confined to the language used by way of illustration in defining the damages suffered by the petitioner arising from the restricted access to the wharf caused by the piling and the northerly abutment of the bridge resting upon land formerly covered by a portion of the wharf, and the bed of that part of the canal in which he owned the fee. R. L. c. 48, § 16, St. 1903, c. 372. The jury on abundant evidence could find, that while vessels at other wharves could be docked and so moved fore and aft as to permit the cargo to be discharged from the first, second or even the third hatch, the petitioner's wharf had been rendered so inaccessible as to prevent this mode of unloading which he previously had been able to use. It was for the jury to determine the extent of this depreciation, and to assess the damages. Bailey v. Boston & Providence R. R., 182 Mass. 537, 540, 66 N.E. 203; Sheehan v. Fall River, 187 Mass. 356, 361, 73 N.E. 544; Cornell-Andrews Smelting Co. v. Boston & Providence R. R., 202 Mass. 585, 588, 599, 89 N.E. 118.

A judge in charging the jury may use illustrations to enable them more fully to understand and apply the law governing the case as given from the bench. Com. v. Johnson, 188 Mass 382, 387, 74 N.E. 939. The illustration was apposite, and the language used in defining such damages as distinguished from damages suffered in common with other landowners is not susceptible to the respondent's criticism that the judge showed that he was biased, but was impartial and unexceptionable. The reference to this court, of which the defendant complains, did not, when read with the context, exceed the discretionary powers of the judge as to...