287 Mass. 34 | Mass. | 1934
This is a petition to register the title to land in Rockport, Massachusetts, on the north side of Curtis Street at its junction with Granite Street. The record title of the petitioner is confined to the middle section of said land on which the dwelling house and its projections rest. The town of Rockport asserts that the petitioner’s claim encroaches on a town way, to wit: said Curtis Street forty feet wide, laid out by the selectmen and accepted by a vote of the town at its annual meeting March 4, 1889.
Pub. Sts. c. 49, § 65, in force in 1889, provides that selectmen “may lay out or alter town ways.” Section 67 requires that, seven days previous to any layout, notice of such intention shall be given to the owner of the land
The record does not disclose that the petitioner, or any person through whom she derives her title, ever asserted against the defendant town an ownership in fee simple in the described layout. The lapse of time between March 4, 1889, when the town at its annual meeting accepted the layout of the selectmen, and the date of the petition, December 16, 1932, without action by the petitioner or by any owner of the land under whom she claims title to remove the cloud on her or their title cast by the acceptance of the layout of the selectmen, established presumptively, not conclusively, the performance of every act by the selectmen and town essential to the validity of Curtis Street. Blossom v. Cannon, 14 Mass. 177. Commonwealth v. Carr, 143 Mass. 84, 88. Packard v. Old Colony Railroad, 168 Mass. 92, 98. McDonough v. Everett, 237 Mass. 378, 381.
Assuming all statutory requirements preliminary to the legal layout of the road called Curtis Street were complied with when the way was accepted by the town at its annual meeting on March 4, 1889, we turn to the report of the selectmen, filed in the office of the town clerk, which was accepted by the town on March 4, 1889, and ascertain therefrom that the way was laid out and located according to the following description, to wit: “Beginning at a point on the westerly side of said Main Highway near the residence of the late John Murray and twenty feet from a stake by land of heirs of Mayhew Main, thence running South 68° 15' West over land of said heirs and heirs of said John Murray 114.3 feet to a bolt in the ground . . . said way is laid out 40 feet in width 20 feet on each side of the above described lines.” The plan of 1933, attached to the record and which is a part of the plan in the engineering files of the Land Court, shows that the layout line opposite the locus on the south side of the way ran southwest by
There are no facts shown by the record, other than nonuser of part of the location, to warrant the finding of abandonment of the easement taken but not used for travel. It is settled that a public way once duly laid out continues to be such until legally discontinued. Preston v. Newton, 213 Mass. 483, 485. A town way may be discontinued by vote of the town and not otherwise. G. L. (Ter. Ed.) c. 82, § 21. Eklon v. Chelsea, 223 Mass. 213. The rights of the public in the whole width of the way as laid out by the selectmen, and accepted by the town in town meeting, were not lost by using less than the whole width of the way. Harrington v. County Commissioners, 22 Pick. 263, 265, 268. Compensation to land owners is based on the full width taken even though part of it is not constructed for travel. Como v. Worcester, 177 Mass. 543. Vye v. Medford, 266 Mass. 208, 213. See Driscoll v. County Commissioners, 268 Mass. 162, 166.
On the facts the petitioner did not acquire title by adverse
So ordered.