Meriam v. Brown

128 Mass. 391 | Mass. | 1880

Ames, J.

“ The general rule is, that the owner of property, whether the property be movable or immovable, has the right to that which is united to it by accession or adjunction.” Wilde, J., in Pierce v. Groddard, 22 Pick. 559. It has been held also that rails laid upon the road-bed, and fastened there, so that engines and cars can pass over them, become annexed to the realty and cease to b'e personal property, in the absence of any agreement changing the ordinary rule of law. Hunt v. Bay State Iron Co. 97 Mass. 279. It appears that the railroad company, although it has constructed the track upon the plaintiff’s land, has never filed any written location, has presented no plan, and has neither paid nor tendered to the plaintiff any damages for land taken. St. 1874, c. 372, §§ 58 seq. It has also ceased to do business, has become bankrupt, and its assignees have undertaken to dispose of all its property, and substantially to abandon the use of its tracks. Not having filed any written location, the corporation has not taken or appropriated the plaintiff’s land for its own use in such a sense as to justify its entry upon it, or to give it any legal title or right to use or occupy it. Hazen v. Boston & Maine Railroad, 2 Gray, 574. It cannot enter upon it, except as a trespasser, even for the purpose of removing the rails which it has placed there, and which, by their annexation to the soil, it has lost the right to remove. The cases cited by the defendants are cases of roads regularly located, or in which the rails were laid with the consent of the owner of the soil, or in which the attempt to remove them was made after an acquiescence on the part of such owner for seven or eight years. In the case at bar, we find no evidence of any such consent; and even if there had been such consent by the owner of the equity, it could not avail against a title derived from the foreclosure of the mortgage. Perkins v. Pitts, 11 Mass. 125.

Decree affirmed