245 Mass. 474 | Mass. | 1923
This is a petition for the registration of land in East Cambridge, bounded by Second, Binney, Third and Rogers streets. The Land Court found that the petitioners have title to the tract of land claimed by them on Rogers Street east of Third Street, and a right of way over this street easterly from Third Street. The petitioners also claim that they have a right of way in common with others over Rogers Street west of Third Street. The Land Court found that there was no easement in Rogers Street west of Third Street over the land of the respondent appurtenant to the land of the petitioners; that if an easement as claimed ever existed, it has been extinguished by adverse use and occupation, and that the forty year statute was in no way pertinent to the case. The case is before us on the petitioners’ exceptions.
The respondent, The Worthington Pump and Machinery
In 1880 railroad tracks ran through Rogers Street from Ninth Street to Third Street. In 1891 and 1893 the respondent’s predecessors built a fence along the westerly line of Third Street, barring all access to their property from Third Street except through Second and through gates on Rogers Street. The fence has been maintained from that time to the present. Twenty-five years ago a covered passageway between the respondent’s buildings was erected across the Rogers Street strip and has since been maintained. The space between the respondent’s buildings on either side of Rogers Street has been'used as a yard for temporary storage purposes and their occupation of Rogers Street west of Third Street for over twenty years has been open, exclusive and adverse to any other interests, and “ has been not only inconsistent with the existence of any easement, but absolutely preventive of the exercise of any easement,” and so open that the petitioners ought to have known of it.
As stated in the decision by the Land Court, “ The petitioners contend that Rogers Street was laid out under the provisions of the statute; that it was therefore subject to be used by the public; and that the public easement could not be extinguished by less than forty years of adverse use.” R. L. c. 53, § 1. See G. L. c. 82, § 2.
The strip called Rogers Street was never in fact a public way. The Land Company, under the statute by which it became a corporation, had authority to lay out streets and passageways, as did also the Improvement Company. In granting these charters the Legislature did not intend to give to a private land company the right to act for the
The forty year statute does not apply to private rights of way as distinguished from statutory private ways, and
As the petitioners had no right of way over Rogers Street west of Third Street, their exceptions must be overruled for the reasons given. Even if Rogers Street west of Third Street were in fact a public way or a private way laid out under the statute by public authority, the petitioners’ land did not abut on this part of the street and we have not found it necessary to consider the question whether it was within the jurisdiction of the Land Court to register the petitioners’ right in a public street upon which its land did not abut.
Exceptions overruled.