160 Mass. 323 | Mass. | 1894
It was found at the trial that the plaintiffs’ right to use Freeman Street as a way had not been extinguished, and this finding is to stand provided the facts would warrant it.
The plaintiffs conceded that Freeman Street was only a private way. If it is assumed in favor of the defendant that it had power to close this way by laying out its railroad across it, still, upon the evidence, the finding of the court was warranted. The location across the street by its terms included so much of the street as was contained between the exterior lines of the location. This is the chief fact relied on by the defendant to show an extinguishment of the way. The location, however, crossed
Under this state of things other documents nearly contemporaneous may be looked at, and it appears that about a month before the location was filed the railroad company took from the predecessor in title of one of the plaintiffs a deed of a strip of land which was covered, or substantially covered, by the subsequent location, lying westerly of Freeman Street and abutting on that street, which is therein repeatedly referred to as Freeman Street. This deed would have the effect to convey the grantor’s title to the middle of the street, reserving to the grantor a right of way over the street. Gross v. Calhane, 113 Mass. 423. Less than a year after the location was filed, the railroad company took from the predecessors in title of the other plaintiff a deed of a strip of land lying opposite to the other lot, and easterly of Freeman Street and abutting on that street, which in this deed also is twice referred to as Freeman Street. This deed tends to show that the railroad company at that time understood and intended that the street should be kept open for travel. White v. New York New England Railroad, 156 Mass. 181.
In addition to this, it appears that after the filing of the location and the construction of the railroad, the division roadmaster of the railroad company placed planks between the rails on Freeman Street, and the planking has since been maintained by the
On the whole, it seems to us that the findings, for the plaintiffs were right. Judgments for the plaintiffs.