174 Mass. 311 | Mass. | 1899
The place where the plaintiff fell was not a public way for whose condition the city of Boston was responsible. In this Commonwealth there can be no public way by dedication without an acceptance of it by the public authorities. Before the enactment of St. 1846, c. 203, such an acceptance
Since the enactment of the statute above referred to there can be no effectual acceptance without a laying out of a way in the ordinary mode prescribed by the statutes. Pub. Sts. c. 49, § 94. Hobbs v. Lowell, 19 Pick. 405. Bowers v. Suffolk Manuf. Co. 4 Cush. 332. Morse v. Stocker, 1 Allen, 150. Hayden v. Stone, 112 Mass. 346. Guild v. Shedd, 150 Mass. 255.
In the present case there is no evidence tending to show an acceptance except the evidence of public use, and that alone will not warrant a finding that the street is a public way by dedication.
There is no evidence that it is a public way by prescription. Durgin v. Lowell, 3 Allen, 398. Sprow v. Boston & Albany Railroad, 163 Mass. 330. By the indenture of April, 1828, the owners covenanted that the land now known as Byron Street should be forever “ reserved and kept open ” for a public street, “ and ceded to the city government as such whenever they will accept the same.” This was an agreement among the land owners that the public should be permitted to use it until it should be accepted as a street by the public authorities. The public authorities never accepted it. The evidence tends to show that in 1838 the public began to use it under this license, and continued their use up to the time of the accident. In the absence of evidence to show the contrary, it must be assumed that this use which began under a license has continued to be permissive. There is no evidence that it was ever under a claim of right. An adverse right to an easement cannot grow out of a mere permissive enjoyment. Bachelder v. Wakefield, 8 Cush. 243 and cases cited.
There is no evidence that the plaintiff was using the way by invitation. She was walking there as one of the public under a license, and had the ordinary rights of a licensee. There is a class of cases where one is upon private land without an invb
It is a general rule that a licensee going upon land of another must take the land as he finds it. Of course the land owner is liable if he does him intentional injury, or wantonly or recklessly exposes him to danger. It has sometimes been said that he is liable for a trap upon his land. We are not aware of any
The case of Redigan v. Boston & Maine Railroad, 155 Mass. 44, is decisive of the case at bar. In that case the plaintiff was walking in the evening along a platform of the defendant’s station building, in a place where the public were permitted to walk and where she supposed it was safe to walk, and fell through a trap door which had been left for an hour open and unguarded. It was held that there was no evidence of negligence on the part of the defendant. In that case, as in this, there was nothing to indicate to the plaintiff at the time of the accident that the way was unsafe. In this case, as in that, a careful observer might have noticed that the surface of the way was arranged to be taken up, and that there was a possibility of disarrangement in opening and replacing it. Reardon v. Thompson, 149 Mass. 267, is a case in which the plaintiff fell into an open hole in the ground concealed by the darkness of the night. In neither of these cases was there such a trap as to create a liability on the part of the owner of the premises who permitted the plaintiff to walk there.
Verdict to stand.