147 Mass. 118 | Mass. | 1888
By the original location of the plaintiff’s railroad, the defendant’s farm was divided into two parts, and over the road as constructed there were in use three crossings, one of which was near certain works known as the Tube Works, and another of which was called Vine Street. The road was constructed in 1840, and the tracks were removed about three hundred feet farther south in 1850, under an agreement made in 1849, between the plaintiff and the defendant, that the defendant would convey to the plaintiff the right to maintain its road over the more southerly strip of land, “ the said company to have the same rights in and to said strip of land as if the railroad of said company had been originally located over the same, and no other.” When thus completed, the strip of land over which the railroad was first located was to be released to the defendant. Vine Street, which was laid out by the defendant in 1840 as a passageway or private street, extended across the tracks of the railroad as originally located, and also •over those of the new location. At a point where Vine Street crosses the present tracks of the plaintiff, a fence was erected by the plaintiff in 1887, which subsequently was removed by the defendant for the purpose of using his alleged right to cross. The exceptions raise simply the question whether there was any sufficient evidence that the defendant had a right of way across the plaintiff’s railroad at the time of the alleged trespass which would warrant a finding in his favor.
The agreement of 1849 provided that “said company will make and keep in repair forever, for the accommodation of said Frost, the same number of crossings over the railroad to be built in pursuance of the agreement as they are now required to do over the railroad that is to be discontinued.” The deed in pursuance of this agreement was not made until 1855, conveying the locus upon which the new track had been constructed as a strip of land sixty feet in width, which was to be “■ used for railroad purposes only,” and to revert to the defendant if the railroad should be discontinued. By another clause in the deed, the defendant relinquished his right to the Tube Works crossing ; it being, “ however, fully understood that nothing herein
The argument of the plaintiff is, that by the agreement it was bound to keep in repair for the defendant the same number of crossings which it was then required to do, and that by the deed it is only provided that none of the existing rights of crossing, except that at the Tube Works which was relinquished, should be affected, and that no new rights were granted to the defendant. It is further urged that no evidence was offered of any existing right, and that proof that the defendant had actually crossed the original location for ten years without objection was no evidence of such then existing right. But the proof is much stronger than this. “It was in evidence,” we quote from the exceptions, “ that, from the construction of the said road in 1840 to the change of location in 1850, the Yine Street crossing had been maintained and planked by the railroad company.” When it is shown that for ten years the plaintiff had itself maintained and planked a way over its road for the accommodation of Yine Street solely, so far as the evidence shows, — when the defendant had crossed there under a claim of right, — and when these facts are coupled with a reference to the defendant’s rights of crossing in the agreement and deed, — there is sufficient evidence to sustain a finding that the defendant had there a right of way which had been previously granted _ or reserved to him. Nor do we perceive, because in the five years that intervened between 1850 and 1855, when the deed was given, there was no planking on the Yine Street crossing over the new tracks, that this conclusively shows, as the plaintiff contends, that there was no legal right to cross at this point when the deed was given.
The plaintiff further contends, that, if the defendant had a right to cross at the place in controversy, such right has been
Again, upon the ground of prescription, the presiding judge was justified in finding that the defendant had acquired a right of way. While this presents a somewhat different question from that whether there was any express grant or reservation shown, the circumstances under which the agreement or deeds were made in connection with which the defendant asserted the right to cross are to be considered. Even if all that the defendant now claims is the right to cross on foot, the facts that there were preparations for his crossing by teams over the original track, and that the agreement and the deed recognized rights of crossing, are not without significance. That a right of way may be acquired by prescription to cross a railroad has been so recently decided that it would not be worth while to repeat the discussion. Turner v. Fitchburg Railroad, 145 Mass. 433.
The plaintiff urges that the evidence shows that the crossing on foot by the defendant, as well as all the other crossing by pedestrians, was permissive only; that it simply continued without objection from the time of the construction of the new tracks until the year 1887, when the plaintiff endeavored to check the annoyance by the erection of a fence; and that until that time
Exceptions overruled.