224 Mass. 256 | Mass. | 1916
A large tract of land in Arlington was partitioned in 1883 into three parcels, Louisa Cook taking one and Harriet A. Pitts the second, which was adjoining and north of the first. These two owners agreed to contribute sufficient land to provide for a forty foot street along the division line between their respective parcels; but later Louisa Cook repudiated her agreement and erected a fence on the division line. This fence was torn down in 1907 by the respondent Lyons, who at that time had purchased all the parcel originally owned by Louisa Cook.
The Harriet A. Pitts parcel was divided into lots in 1886, and a plan of the same was recorded. The proposed street appears on this plan, the centre line thereof indicating the southerly boundary of her land; and the twenty foot strip of her land adjoining this boundary is the passageway involved in this controversy.
The lot of the petitioners (being lot 1 on said plan) was conveyed by Harriet A. Pitts to a predecessor in title of the petitioners in 1886. In the deed it was described as "Beginning at a point on the southwesterly side of Massachusetts Avenue, formerly Arlington
Lot 13 on the plan adjoins the lot of the petitioners on the west. Its southerly line is one hundred twenty feet long and abuts on said passageway. Its westerly line is fifty-eight feet in length, and abuts on a forty foot street, indicated as Belknap Street, although Belknap Street was first laid out and graded about 1896.
The petitioners applied to the Land Court for registration of their lot (No. 1) and of the said passageway from Massachusetts Avenue to Belknap Street. A jury claim having been filed by the respondent, the judge of that court framed this issue, which was submitted to a jury in the Superior Court: “Is there any easement over the passageway parcel of land claimed by the petitioners appurtenant to the land of the respondent, Lyons, which has been acquired by prescription, and if so, what?” The answer of the jury was “Yes.”
At the trial of this issue in the Superior Court, there was evidence offered by the respondent that he had used the said passageway continuously for a period of at least twenty-one years as a means of travel to and from certain coal yards which were on the northerly side of the railroad track shown on the plan, and for other purposes. His route was from Linwood Street through Belknap Street to the passageway in question, then through said passageway to Massachusetts Avenue. On behalf of the petition- 1 ers there was evidence that Stearns, the owner of Lot 13, had erected obstructions, consisting of planks placed on the tops of barrels, across said passageway in two places; — one at its easterly end, parallel with the line of Massachusetts Avenue, the other along the easterly line of Balknap Street, extended. The petitioners excepted to that portion of the judge’s charge to the effect that the obstruction of the passageway would be ineffective to prevent the acquiring of a prescriptive right unless such interruption was authorized or ratified by the owner of the passageway. This is the only exception before us for consideration.
The obstruction opposite the lot of the petitioners was placed there by Stearns “for the purpose of preventing the acquiring of any prescriptive rights by third persons.” It does not appear to have been even brought to the notice of the respondent. Such temporary intrusion or occasional trespass by a stranger does not interrupt the running of the statute in behalf of an adverse occupant. R. L. c. 130, § 2. Proprietors of Jeffries Neck Pasture v. Ipswich, 153 Mass. 42, 45. 2. C. J. 98.
■\ The other obstruction, at the westerly end of Lot 13, does not seem material to the registration of the land of the petitioners. Over that portion of the passageway they have only a right of way, and that right is not disputed. The rights of Stearns in that part of the passageway are not before us for determination. No copy of the deed from Pitts to Stearns is in the record, and all the parties interested are not before the court.
We find no reversible error in the portion of the charge objected to, and the entry must be
Exceptions overruled.