303 Mass. 371 | Mass. | 1939
The first action is by the administratrix of one Cooley to recover for his death while driving an automobile truck loaded with gravel over a private crossing of the defendant’s railroad in Weston. The plaintiffs allege that a collision between the truck and a train was caused by the negligence of the defendant. The second action is for property damage to the truck.
The cases come to us by report of the judge wherein it is stipulated that an auditor’s report previously filed in both actions “constitutes a case stated,” and that if the judge erred in entering judgment for the plaintiff in each case on that report, judgments are to be entered for the defendant.
We cannot accept as facts various statements of the testimony of witnesses included in the auditor’s report, except as that report may indicate that the auditor adopted such statements as true. In some instances it is not easy to draw the line between statements of evidence and findings of fact. Yet we must make that distinction as best we can by construction of the report itself.
At the outset the question arises whether Cooley was using the private crossing under any right which the defendant was bound to respect or by invitation of the defendant on the one hand, or as a bare licensee or trespasser on the other hand. Only under the first alternative would the defendant owe Cooley or his employer, the corporate plaintiff, the duty of due care, and the plaintiffs must establish as a part of their cases that the defendant did owe them that duty.
The findings pertinent to this issue appear to be these: The railroad, a single track line running east and west, was originally constructed about 1880 by the Massachusetts
These facts fail to show a right of way over the Coburn crossing for the benefit of the Ellis land, in connection with which the crossing was being used at the time of the accident. "An easement in real estate can be acquired only by deed, or by prescription, which supposes a deed.” Morse v. Copeland, 2 Gray, 302, 305. Cook v. Stearns, 11 Mass. 533. Baseball Publishing Co. v. Bruton, 302 Mass. 54. No way by prescription is claimed and apparently none could have been acquired against the railroad corporation. G. L. (Ter. Ed.) c. 160, § 114. At most the only grant by deed was that of a "farm crossing” for the use of the Coburn land. Whatever may be the variety and extent of user permitted by the words "farm crossing,” an
The plaintiffs contend that the owners of the Ellis land had a right of way by necessity over the railroad to connect their severed portions, and that the negotiations hereinbefore set forth resulted in the specific location or establishment of that way on the ground as running via the Coburn land and over the Coburn crossing. See Byrne v. Savoie, 225 Mass. 338, 340. One fatal difficulty with this is that the facts reported fail to show that the Ellis owners had any right of way by necessity. In Googins v. Boston & Albany Railroad, 155 Mass. 505, at page 506, this court said, with citation of previous cases, “In general, when land is taken for a railroad, and no right of crossing is reserved in the location or ordered by the county commissioners, it is not subject to such a right, even if without it an owner will be cut off from access to his land.” The damages awarded to the landowner include this element of loss. New York, New Haven & Hartford Railroad v. Miller, 165 Mass. 514, 516. Compare Hamlin v. New York, New Haven & Hartford Railroad, 166 Mass. 462. See, however, as to land deeded to a railroad, New York & New England Railroad v. Railroad Commissioners, 162 Mass. 81. The provisions of G. L. (Ter. Ed.) c. 160, §§ 109, 110, whereby one whose land has been cut off by a railroad may secure
We cannot accept the plaintiffs’ contention that the defendant is estopped to deny the “right” of the plaintiffs to use the Coburn crossing because of its statement to Eldred that it would have no objection to the use of that crossing and Eldred’s purchase of the Ellis land in reliance upon that statement (if he did rely upon it). One who sees fit to rely on a mere promise or permission of this kind cannot obtain the equivalent of a grant by invoking the doctrine of estoppel. Eldred knew that the railroad corporation had made to him no grant of an easement in its land. Fitch v. Seymour, 9 Met. 462, 468. Stevens v. Stevens, 11 Met. 251. Langdon v. Doud, 10 Allen, 433. Jackson v. Allen, 120 Mass. 64, 77. Hodgkins v. Farrington, 150 Mass. 19. Claflin v. Boston & Albany Railroad, 157 Mass. 489, 495. Home Investment Co. v. Iovieno, 243 Mass. 121, 125. Carlton Chambers Co. v. Trask, 261 Mass. 264, 269. Nelson v. American Telephone & Telegraph Co. 270 Mass. 471. There is nothing to the contrary in Levin v. Rose, 302 Mass. 378.
If the owners of the Ellis land had had a right to a way over the track it could be argued with some plausibility that the defendant invited Eldred to use the Coburn crossing in the defendant’s own interest and for its own benefit in order to save itself the inconvenience of two crossings so near together, although a question might still remain as to whether such invitation included the plaintiffs. But when, so far as appears, the Ellis owners neither had nor then claimed any right to any crossing at all, this argument falls, and the defendant’s statement that it “would have no objection” to the use of the Coburn crossing cannot in any event fairly be construed as creating more than a mere license under which the plaintiffs used the crossing. Mason v. Albert, 243 Mass. 433, 437.
Judgment for the defendant.