Kilburn v. Adams

48 Mass. 33 | Mass. | 1843

Shaw, C. J.

The question is, whether the plaintiffs, owners of an estate adjoining the academy lot, acquired a right of way over that lot, by the adverse and uninterrupted use of such way, by themselves and the former owners and occupiers of the estate, under the circumstances set forth in the report. The rule we think is, that where a tract of land, attached to a public building, such as a meeting-house, town house, school house, and the like, and occupied with such house, is designedly left open and unenclosed, for convenience or ornament, the passage of persons over it, in common with those for whose use it is appropriated, is, in general, to be regarded as permissive, and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to enclose it, such use is not adverse, and will not preclude them from enclosing it, when other views of the interests of the proprietors render it proper to do so. And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply, unless there be some decisive act, indicating a separate and exclusive use, under a claim of right. A regularly formed and wrought way across the ground, paved, macadamized, or gravelled and fitted for use as a way, from his own estate to the highway, indicating a use distinct from any use to be made of it by the proprietors, would, in our opinion, be evidence of such exclusive use and claim of right. So would be any plain, unequivocal act, indicating a peculiar and exclusive claim, open and ostensible, and distinguishable from that of others. But the fact that a particular track or line was a little more worn and marked by travel, than the general surface of the lot, or that the adjacent proprietor had occasionally levelled a spot gullied by the rain, could scarcely be regarded, inde pendently of other proof, as indicative of a claim of right. First Parish in Gloucester v. Beach, 2 Pick. 60, note.

In the present case, the court are of opinion that there is no evidence of the use of this way, by any of the plaintiffs’ predecessors, until James Brazer built a house there in 1805 ; nor after that time, of any use so exclusive, peculiar, or different from that of all others having occasion to pass and repass, as to found a claim of right for a way over this open lot, attached to and occunied with the academy. The fact that James Brazer and his son were, for a greater part of the time, trustees of Groton Academy, and members of the corporation in which the estate was vested, is to be taken into consideration, we think, in weighing the evidence. For although the relation was not such as to preclude them from taking an easement by actual grant, or from acquiring one by such unequivocal acts of adverse and uninterrupted possession as to prove a grant; yet doubtful or equivocal acts will not be so readily deemed adverse, as those of a stranger having no rights in the estate, and charged with no duty, growing out of his fiduciary relation, to protect and preserve it. Many of the same acts, which, in a stranger, having no right, and charged with no duty, ought to be deemed adverse, and attributed to a claim of right, would, in the case of a trustee and corporator, be regarded as permissive, and done under an implied license from himself and his associates.

If the acts of Ammidon and others, who came in under William F. Brazer, in 1822, can be considered as indicating, more unequivocally, a claim of right, they would not avail the plaintiffs, because they do not prove an uninterrupted claim for twenty years; the trustees of the academy having passed a vote in 1841, directing the land to be enclosed, and the way cut off. The court are therefore of opinion that the nonsuit must stand.