171 Mass. 367 | Mass. | 1898
This is a petition under St. 1893, c. 340, to compel the respondent to bring an action to try its alleged title to a strip of land which the petitioner claims to own in fee, but in which the respondent claims to have an easement by virtue of the location of its railroad, made by one of its predecessors in title about 1851. The boundary line between the land taken for the railroad and the other land of the petitioner is in con
We are not aware of any previous instance where one whose only claim was a right to an easement has been required to institute proceedings to try its extent or validity. It has usually been assumed that the action contemplated by the statute is a writ of entry, or possibly an action of tort in the nature of trespass. Tisdale v. Brabrook, 102 Mass. 374. Orthodox Congregational Society v. Greenwich, 145 Mass. 112. Brown v. Matthews, 117 Mass. 506, 509. Silsbee v. Salem, 103 Mass. 144. In the present case, the respondent could not maintain a writ of entry, having no seisin of the land; Rehoboth v. Hunt, 1 Pick. 224; nor trespass, being out of possession. The petitioner suggests that, if the respondent were to demand the removal of the coal sheds, it might then assert its claim of right by an action of trespass. But no good reason appears for requiring it to make a
This view is confirmed when we consider that the petitioner is under no such disability. We see no jurisdictional reason to prevent him from maintaining a bill in equity to remove a cloud upon his title, and in this way having his boundary line determined. It is true that the burden of proof will be upon him to show the extent of his ownership; but this is no objection to leaving him to pursue a remedy in his own name, instead of seeking to compel the respondent to go forward. Tompkins v. Wyman, 116 Mass. 558, 561.
Exceptions sustained.