184 Mass. 140 | Mass. | 1903
This is an action for personal injuries suffered by a traveller from tripping over an indentation or rut three to six inches deep in a walk, caused by the washing away of the surface of the walk by rainwater. It appeared that the indentation or rut had been allowed to remain without being mended for some two weeks before the accident to the plaintiff. The defence set
The accompanying plan shows the common in question. It is a triangular lot of land bounded by what are now Salem, Ham-den and Lowell Streets. The plaintiff’s contention is that what is called Short Street in the case was a public way through the common and included within its limits the walk in question on which the accident happened.
It appeared that the triangular lot of land mentioned above •was an ancient common, the fee being in the Old South Parish, and that by an indenture dated August 4, 1853, between the parish and the defendant town, it was conveyed to the town, and the inhabitants of the town covenanted that it should “ be forever used by the town as a common.”
The defendant asked to have the jury instructed that there was no evidence that the walk where the plaintiff was injured was at the time of the accident part of one of the public ways within the town of Reading. This was refused, and the jury were instructed that the place where the accident happened was originally part of a public common and that the defendant was not liable unless it had become a public way by prescription.
The plaintiff now seeks to sustain the refusal to give this ruling by the contention that there was no evidence that Short Street was ever part of the common. This contention is based on the fact that the premises covered by the indenture of 1853 are described as “ all the land now used as a common, containing two acres more or less, lying between Lowell [now Salem] Street, Salem [now Harnden] Street, and Ash [now Lowell] Street.” She argues that the deed did not cover all the land between the three streets named in it but only so much of it as was then used as a common, and that there was no evidence that the part called Short Street was then or had been previously so used.
But in our opinion that is not so. In our opinion the deed is not a conveyance of so much of the parcel of land described as is used as a common; it is a deed of all of the parcel of land described, which parcel of land is used as a common and contains two acres more or less, and lies between Lowell Street, etc.
The presiding judge instructed the jury that the whole triangle, including the part called Short Street, had been formerly a common. In this he was, in our opinion, right. But he also told the jury that if Short Street had been used as a way continuously for twenty years prior to the enactment of St. 1875, c. 163, now R. L. c. 53, §§ 17, 18, adversely under a claim of right, it became a way by prescription. In this we think that he was wrong. There was no evidence of such user.
All that appeared in evidence was that persons going from Union Street to Woburn Street, or vice versa, were in the habit of passing over that portion of the Common which is called Short Street, and that they passed and repassed over this portion of the Common in carriages and on foot; that the wheel marks were where Short Street is shown on the plan, and that persons on foot were in the habit of going just north of the wheel marks, where there is now a walk shown on the plan. There was no evidence that the defendant town ever had constructed or repaired what is called Short Street as a street for travel. It did appear that in 1883 or 1884 a curb was put round the easterly of the four lots shown on the plan, and that the path where the plaintiff was walking was within the curb. The plaintiff’s contention is that the place where she was walking had become part of a highway by prescription, and what took place in 1883 or 1884 did not change its character. But so long as a common is open, in the absence of regulations to the contrary it is the right of any member of the public to drive or walk across it, and his doing so will be taken to be the exercise of that right and cannot be made the ground for a title by pre
Exceptions sustained.