Smith v. Barnes

101 Mass. 275 | Mass. | 1869

Hoar, J.

The facts reported in the bill of exceptions show that the defendants owned a right of way to their marshes over the plaintiff’s land; that the plaintiff obstructed and shut up the way, against the will and notwithstanding the resistance of the defendants; that he afterward notified the defendants that they might pass over his land by a different way; and that they thereupon adopted and used the new way instead of the old one for several years, the old one remaining obstructed. The action is tort in the nature of trespass qua/re clausum fregit, and the defendants justify under a claim of right in the new way.

We can have no doubt that these facts were ample to warrant the finding that there was a dedication of the new way in consideration of the surrender of the old one, under the authority of Larned v. Larned, 11 Met. 421; Pope v. Devereux, 5 Gray, 409; Smith v. Lee, 14 Gray, 473.

The fact that the plaintiff, when he bought his farm, had no knowledge or suspicion that any such right of way existed, and that he did not in terms recognize or acknowledge any right of way, does not affect the legal conclusion. He had full notice that the defendants claimed a right of way, before the substitution was made, and his acts in closing up the one and notifying the defendants that they might use the other, accompanied by the acquiescence of both parties in the change, and in connection with his action against his grantor for the damages occasioned by the incumbrance, were as effectual proof of his acknowledgment of the right as any verbal statement.

Exceptions overruled.