183 Mass. 307 | Mass. | 1903
It appears frozn the statemezzt of agreed facts that at the time of the proceedings in 1793 to lay out a way, the level of the bar connecting the mainland with the island so called, over which the way was laid out, was above that of mean high water and was covered by the sea only during the high courses of tides. The proceedizzgs therefore were not beyond the jurisdiction of the town, and the way appears to have been legally established. Storer v. Freeman, 6 Mass. 435, 439. Commonwealth v. Charlestown, 1 Pick. 180, 182. Commonwealth v. Roxbury, 9 Gray, 451, 483, 491, and the authorities cited in the reporter’s note, p. 503, ad finem. See also Commonwealth v. Weiher, 3 Met. 445.
That way still exists in law, notwithstanding the fact that partly by the artificial removal of gravel and partly by the great storm of 1851, the surface of the land over which the way was laid out has been lowered so that since 1851 it has been below high water mai-k. See authorities cited in Gould on Waters, §§ 158, 159. See also Hopkins Academy v. Dickinson, 9 Cush, 544. Macdonald v. Morrill, 154 Mass. 270. The result is that the ruling that there was a way from the island to the mainland was correct. The conclusion to which we have come upon this part of the case makes it unnecessary to consider the other grounds upon which it was claimed by the plaintiff that there was a way.
Judgment on the verdict for the larger sum.
