280 Mass. 142 | Mass. | 1932
The subjoined opinion was prepared by Mr. Justice Sanderson, and was adopted after his death as the opinion of the court.
These are two petitions for registration of title to real estate in the town of Cohasset. The Bates petitioners sought to register title to the locus in dispute, and a petition was filed by the town in which the Wights and Barnes et al.- are respondents to register title to the locus in dispute and also other land to the south of that locus. The Bates petitioners will be referred to as the petitioners, and the town of Cohasset, and the Wights and Barnes et al, the individual respondents, will be referred to as the respondents unless otherwise designated. Cyrus H. Bates has died since the filing of the petition, but the remaining petitioners inherited his share of the land in question.
The decision of the Land Court is in part in the following terms: “These two cases were tried together. The land in
The limited corporate characteristics possessed by early towns tend to make it improbable that grants in 1640 were intended to be to the municipality. Rehoboth v. Hunt, 1 Pick. 224. Porter v. Sullivan, 7 Gray, 441, 444. Commonwealth v. Roxbury, 9 Gray, 451, 495, 500. The grants later made of this land apparently were made by its proprietors. We find no error in the conclusion of the judge of the Land Court that the act of the General Court in 1640 conferring upon Hingham land and meadow in Conihasset and giving commissioners power to dispose of them to the inhabitants according to their number of persons and estate was a grant not to the town in its corporate capacity, but to the inhabitants as individuals to hold as tenants in common. The form of the act, as well as subsequent events, would seem to support the theory that the land in
One of the contentions of the petitioners, as stated by the judge of the Land Court, was that the tract in dispute was included in the divisions made by the proprietors of their lands with a reservation of a right to locate the highways over it. The respondents contend that the whole of the disputed locus is a part of Jerusalem Road. The petitioners contend that the westerly line of that road is the westerly line of the road as used and that their land bounds on this road. The judge of the Land Court states: “I have gone carefully through the great mass of ancient records, grants and plans that have been submitted in these cases. I find that the land in controversy was not included in the proprietors’ divisions. This appears both from the divisions themselves and from the plans thereof. The vote of 1678 to sell all the wood and timber on the highway running along between the salt meadow and the lots of the second division until it comes to Pye Corner is significant. The petitioners’ house lot comes out of the second division. Land of the respondent Barnes to the south was at Pye Corner where an ancient way, later discontinued, ran to the west. The petitioners show no record title under the sixth division, into which the tract in dispute fell if that division did, as I find that it did not, include this tract. It is argued that the entire tract . . .
Whatever its history before 1738-1739 may have been, Jerusalem Road was in that year laid out as a road four rods wide. It was relocated in 1867, forty-five feet wide “on the lines of the existing walls and fences . . . [which were] represented by black lines on the Plan, except, as hereinafter specified . . . said new lines being designated by red lines.” On the plan there were no red lines and no changes indicated at the point in question. In 1901 the road was again relocated, but no change was made in it where it adjoins the disputed locus. We have examined the record and find that no sufficient reason has been shown for reversing the finding of the judge of the Land Court to the effect that the disputed locus is not a part of Jerusalem Road and that the locus was not included in any of the divisions of the proprietors.
The petitioners contend that the court erred in reaching the conclusion that the act of the proprietors in 1788 passed to Cohasset title to common and undivided land held by them within the limits of that town. The decision of the Land Court on this matter is in the following terms: “In 1770 Cohasset was separated from Hingham, and in 1775 became a town. In 1788 the proprietors of Hingham, having finished the division of the common and undivided lands, voted to accept a committee report that ‘all the proprietors’ ways and undivided lands be given up to the town for their use and benefit forever on the conditions following’ that certain highways in Hingham as therein described be laid out and that the town accept the above
We are of opinion that although the town of Cohasset was not mentioned by name in the vote the trial judge was right in holding that when the proprietors gave up to the town "all the proprietors’ ways and undivided lands” the title to such ways and lands as were in Hingham went to Hingham and the title to such as were in Cohasset went to Cohasset, and also in holding that nothing appearing to the contrary acceptance would be presumed. The proprietors had been proprietors of common lands in Hingham when Cohasset became a separate town. They continued to hold title to the land in both towns. They would naturally refer to themselves as proprietors of the common lands of Hingham. But when their work of division came to an end they could not convey to Hingham the part remaining within the limits of Cohasset. Their purpose evidently was to bring their work to an end and the appropriate way to do it was to convey the land in each town to the town in which it lay. In Easton v. Drake, 182 Mass. 283, 285, the court said: "Liberal rules are to be applied in the construction of such ancient grants, in order to carry out the intention of the parties.”
The petitioners have also contended that they gained title to the locus in dispute by absorption and by adverse possession. The findings of the Land Court on these questions are in the following terms: "It is the contention of the petitioners that title to the parcel in dispute remained in the proprietors as tenants in common until it became absorbed in the
The question whether the petitioners have gained title by adverse possession is one of fact. The conclusion of fact that such title has not been gained is decisive unless the subsidiary findings control it. The petitioners have never fenced the land they claim to own by adverse possession and it might not be evident that the purpose of the petitioners in doing some of the acts done by them upon the land was to assert a claim of ownership. The fact that the town took gravel from the land in dispute with the consent of the petitioners' predecessor in title, while significant, is not conclusive of the rights of the parties in the disputed locus. We cannot say that as matter of law the trial judge was clearly wrong in reaching the conclusion that no title had been gained by the petitioners by adverse possession and that the title to the disputed tract is in the town.
It seems, however, that a letter identified as Exhibit A VIII (c) went in without objection by the petitioners. This was a letter from an assistant clerk of the board of selectmen and stated that there was no record of assessment of the land in dispute. In these circumstances we think there was no prejudicial error in admitting in evidence the certificate of the assessors.
Exception numbered 23 relates to the introduction in evidence of an exhibit purporting to be signed by John H. Cook, not living at the time of trial, stating, in substance, that he had lived in the neighborhood since about 1832 and that the locus in dispute was always known as common land and that the well on the land was used by the owners of all the land adjoining. This statement was sworn to before Mr. Wight, a justice of the peace, who produced it at the trial. It does not clearly appear from the record what evidence was introduced in connection with this affidavit. The statement of Cook would be competent if there was evidence to show that he stated the facts of his own personal knowledge. This court has held that an exception will not be sustained to the admission in evidence of the statement of a deceased witness if the record does not show that no preliminary inquiry and finding were made by the trial judge.
We have considered all the exceptions in this group and are of opinion that the petitioners have not been prejudiced in any of their essential rights by the admission in evidence of any of the exhibits or plans or by the use which appears to have been made of the evidence showing the chain of title of neighboring estates. See Drury v. Midland Railroad, 127 Mass. 571, 581; Weld v. Brooks, 152 Mass. 297. 304; Whitman v. Shaw, 166 Mass. 451.
We have found no sufficient reason to modify or reverse the findings of fact to which the petitioners have objected. The whole evidence is not reported. The findings of fact by a judge of the Land Court will not be disturbed unless unsupported by the evidence. Mahoney v. Wilson, 260 Mass. 412.
The respondents excepted to the granting of the petitioners’ requests for rulings numbered 3, 4 and 5: (3) “By the early vote of the town of Hingham on January 17,1669, the town voted that their common lands (which included the locus) should be cast into seven hundred shares in dividing, and every one of themselves to possess and enjoy to themselves and their heirs and assigns forever as follows, and then proceeded to draw the several shares in the names of the different inhabitants of the town, giving to each his shares ‘to him and his heirs and assigns forever.’ This vote and drawings disposed of all the common lands of Hingham, including the Cohasset lands not previously divided, and each shareholder held an undivided interest in these common lands, which passed to him and his heirs and assigns forever, and the town as a corporation no longer had any rights or interest in these common lands, thereafter they belonged to the shareholders”; (4) “Subsequent early votes of 1669 and 1670 of the proprietors of the common lands in Hingham (which included the locus) divided the common lands into parcels, which were distributed among the original seven hundred shareholders except lands reserved for highways”; (5) “The town of Hingham no longer held any interest in the aforesaid lands, including the locus, when
The respondents contend that the judge of the Land Court erred in refusing to rule, in effect, that recitals in ancient deeds and plans when produced from proper custody and material are presumed to be true. It is evident from the statement of the judge that his refusal to grant the requests under consideration was solely because he was of opinion that such recitals did not create a conclusive presumption. Even if he did not understand requests numbered 22, 44 and 46 as the respondents intended them to be understood, the exceptions should not be sustained for this reason. The excepting party must state his exceptions so that they may not be misunderstood if he expects to base any rights upon them. It is apparent, however, from the statements of the judge in connection with his rulings on these requests that he gave proper weight to the recitals in ancient deeds. He cited, in support of his understanding of the correct rule, Bridgewater v. West Bridgewater, 7 Pick. 191, Ward v. Oxford, 8 Pick. 476, and Sparhawk v. Bullard, 1 Met. 95.
We have examined all the exceptions argued and find no reversible error in the rulings of the judge or in the parts of his decision to which our attention has been drawn. In each case the entry may be
Exceptions overruled.