New York, New Haven, & Hartford Railroad v. Benedict, 169 Mass. 262

New York, New Haven, & Hartford Railroad v. Benedict

169 Mass. 262 | Mass. | 1897

Allen, J.

The copy of the record of the deed or paper executed in 1849 by the defendant’s predecessors in title was competent. Although not formally running to the Berkshire Railroad Company, there can be no doubt that thal^ company was in reality the other party to it. The disclaimer of right and title up to the walls of the buildings was for the benefit of the railroad company, and nobody except the railroad company, so far as appears, had any interest in the subject to which the paper related. It was obviously designed to affect the title to the land, and to define the boundary line, and therefore was an instrument which it was proper to record in the registry of deeds. A deed more than thirty years old, if produced from the proper custody, requires no formal proof; and in this Commonwealth an office copy of an ancient recorded deed may be admitted in evidence as if it were the original deed. Stetson v. Gulliver, 2 Cush. 494, 498. Commonwealth v. Emery, 2 Gray, 80. Thacher v. Phinney, 7 Allen, 146. Samuels v. Borrowscale, 104 Mass. 207. Boston v. Richardson, 105 Mass. 351, 371, 372.

This paper had a tendency to show that the signers were the owners of buildings adjacent to the railroad, on the east side thereof, and that they were in the use and occupancy of some land to the west of their buildings; and they thereupon signed this formal paper, which was under seal and acknowledged, for the purpose of showing that such use and occupation were by the permission of the railroad company, and that they admitted that the stone walls on which their buildings stood showed the westerly line of their premises. If the railroad company accepted this paper* and put it on record, it had some tendency to show that it made no claim to the land under the foundation walls of the buildings, and that an agreement was then had as to the true boundary line. In point of fact, according to the report of the master, the location of the railroad extended a little farther to the east, and included a strip of land under the buildings, three and three tenths feet wide at the south end, and five feet wide at the north end. ■ But the location was made in such *267form that its outside lines might not be well understood, and in 1843 the owner of the adjoining land on the east gave a deed to the defendant’s predecessors which included this narrow strip now in controversy. Occupation followed, and buildings were soon erected covering said strip of land, and for fifty-three years after the date of the deed the grantees and their successors continuously occupied and used the same openly and adversely, claiming title thereto, and there was nothing to show that the Berkshire Railroad Company or its lessee (the present plaintiff) ever claimed title to or an easement over any portion thereof, until after October 11, 1896. From this evidence an abandonment of the easement might be found. It is not a case of mere non-user of the easement, but of non-user accompanied by adverse occupation under claim of title, with a recognition on the part of the railroad company that such claim of title was well founded, as shown by its acceptance of the instrument of 1849. An intention to make no claim to a right of way over the strip of land in dispute might therefore be found. Westcott v. New York & New England Railroad, 152 Mass. 465, and cases there cited. Bicknell v. New York & New England Railroad, 161 Mass. 428.

There might be a difficulty in establishing the defendant’s asserted title by prescription, by reason of St. 1861, c. 100, and later statutes ; but this does not affect the finding on the ground of abandonment. Judgment affirmed.