260 Mass. 412 | Mass. | 1927
The Land Court, after its decision filed in March, 1925, had been affirmed by this court, Wood v. Wilson, 256 Mass. 340, granted a rehearing to the respondent. The cause is now before us upon exceptions taken at the rehearing. It is important to decide what was opened to the respondent by the allowance of the motion. The former decision established that the respondent was not the owner of the fee in the land in question, but was entitled to a right of way over the locus, and it fixed the location of the right of way. A motion for a rehearing of the entire matter, based on newly discovered evidence, was denied. Thereafter the respondent asked a rehearing upon the location of the right of way. This was granted, because the trial judge was satisfied that the respondent and her counsel had not fully understood the bearing of certain questions put to her by the court, and because bis decision that she had selected a certain location for her right of way had been based upon her answers.
At the rehearing evidence to show that the respondent was entitled to use the entire tract as beach and to walk, wade and swim over all parts of it was excluded. The trial judge limited the rehearing to the location of a right of way over a definite part of the area; and did not consider anew whether she had a greater right. In this there was no error of law. The extent of her right had been determined in earlier proceedings which the court saw no ground for reopening. It had power to refuse to reopen that decision. This court cannot revise its action therein.
It follows that much that has been argued by the respondent is immaterial. We need not consider the effect of the
The law is settled that if the bounds of a way. are not located by the deed which creates it, the parties may fix the location upon the servient premises, and, if they do not, a court may do so. Burnham v. Mahoney, 222 Mass. 524. Kesseler v. Bowditch, 223 Mass. 265. McKenney v. McKen-ney, 216 Mass. 248. Old Colony Street Railway v. Phillips, 207 Mass. 174, 181.
Where the evidence of use is conflicting, questions of fact arise for decision by a jury or by the trial judge as the case may be. That decision will not be disturbed unless unsupported by evidence.
The trial judge gave all the rulings requested by the respondent which were material to the issue before him. We find no error.
Exceptions overruled.
