52 Mass. 421 | Mass. | 1846
Though it was formerly doubted, by learned •udges, whether a way was ever made by dedication, in this
In the present case, we think it was competent for the defendant to show a dedication of the way by the owner of the land. And while it is true that mere user will not prove a dedication, it is equally true that length of use is not a necessary element without which a dedication cannot be proved; (8 Met. 243; 2 Greenl. on Ev. § 662;) and that it may be proved by express dedication, or by unequivocal acts and cir ■ cumstances from which the same may be clearly inferred.
The defendant offered to prove that an ancient way, which was circuitous, existed across the plaintiff’s close, and that, for eight years, the way was so far changed as to straighten it — the termini remaining the same; and that this change was made by the then owner of the close, and the present plaintiff and defendant, who then, as now, used the way. We entertain no doubt that such evidence would be fully competent to prove a dedication of the new way, by the owner of the soil, as made by him for the very purpose of being used instead of the old way, and that it was assented to by the plaintiff and defendant; and that the learned judge erred in excluding the evidence. It is no answer for the plaintiff to say, “ this was done by my grantor, and I do not now assent to it.” The question is not what the plaintiff now assents to or refuses; but whether the then owner of the soil dedicated the way. If he did, and if the plaintiff is injured, his redress is upon the covenants of his grantor, and not by shutting up the way. Nor is it sufficient for the plaintiff to say that other persons may choose to travel over the old way, and therefore he has a right to shut up the new. Such a conclusion does not follow. It may be that other individuals may not be precluded from travelling the old way; yet we think the plaintiff is himself estopped to deny that his grantor did dedicate the new wav. New trial granted.
