108 Mass. 224 | Mass. | 1871
The first four exceptions relate to the questions put to William J. Rotch, a witness for the plaintiffs,- and his answers. To understand them properly, it is necessary to advert to the points to which they relate, and the situation of the witness. The defendant claimed a right of way over the wharf to a warehouse which he occupied under a lease from Benjamin Rod*
The first question was, whether he was ever aware of any adverse claim of a right of way by Rodman or his tenants over the wharf, and he answered in the negative. We can see no objection to his making this negative as broad as possible. If it had been limited to the time of his presidency, it might have been said, with some force, that he knew it at a prior time, as he was a relative of the defendant and familiar with the premises. It was the right of the plaintiffs to prove that he never had knowledge of it, and the value of this testimony would depend upon his means of knowledge.
The second question was, whether there had been a permissive use of the wharf to Rodman and his tenants and all other persons, while he had been an officer of the corporation; to which he answered, “ Yes, so far as I know.” This is objected to as leading; but it is not subject to exception on that ground. York v. Pease, 2 Gray, 282. It was pertinent and material; and if the defendant’s counsel thought it was more broad than the knowledge of the witness would warrant, they could have ascertained it by cross-examination.
The third and fourth related to the effect of such use upon the wharf, and the reasons of the witness for his assertion. It was pertinent as showing the character of the use; and if the use did no damage, the jury would be less likely to consider it adverse than if it caused considerable damage ; for a neighbor would be more likely to grant a favor that did him no injury, or to take a liberty that injured no one, than if the act were injurious.
The last exception relates to the admission in evidence of the deed of the wharf property to the plaintiffs. The plaintiffs’ charter was March 15, 1831. The organization was September 3, 1831. The deed was dated August 20, 1831; and the registry was March 13, 1832. The plaintiffs’ occupation has been accord
Exceptions overruled.