163 Mass. 569 | Mass. | 1895
This is an action of tort, in which the question is whether a strip of land half a rod wide on the east side of the defendant’s road-bed belongs to the plaintiff or to the defendant. The land is to the south of the lands in controversy in Bicknell v. New York & New England Railroad, 161 Mass. 428, and in Westcott v. New York & New England Railroad, 152 Mass. 465, and is on the east side of the road-bed. In this case, as in those, it is to be taken that the original location was five rods wide, and included the strip in question, and the only issue is whether it had been narrowed by abandonment of this strip. The principal exception is to the admission of the documents mentioned in the cases named. These documents are a petition to the county commissioners by the administrator of one William L. Carlton, for the assessment of damages for land taken by the location, the decision of the county commissioners thereon by consent of the parties, and a deed executed in escrow by the widow and heirs of Carlton ■ as part of the same transaction, together with the agreement as to the terms and conditions for its delivery.
The documents were held to be admissible in the former cases, but the present case is materially different. The land now in controversy did not belong to Carlton, but lay just outside his line, which only extended to what has been called the four-rod line, on the east side of the location. Of course, therefore, the proceedings on behalf of his estate could not affect or deal with this strip. They did not purport to do so in any way, or contain any language about it. If the escrow had been delivered, which it was not, it would have afforded no argument from probabilities that the location extended only two rods to the east of the centre line, on the ground that it was only two rods on the west. On the contrary, the escrow would have conveyed at this
The other exception relates to the admission of a deed of land eight hundred feet distant from the strip in question, and a plan referred to in the deed. In the Westcott case the deed was admitted, as it conveyed a part of the land then in controversy. But, for the reason already given, the fact, if it be one, that the railroad did not claim other land outside the four-rod line, does not tend to prove that it did not claim this. The deed was not admissible as a conveyance. It was argued that the plan referred to was admissible on independent grounds. It is an extended lithographic plan of land belonging to the Mt. Bowdoin Land Associates, and on the outskirts of the land is laid down the track of the defendant’s predecessor, the Boston, Hartford, and Erie Railroad, for a very considerable distance. A witness who testified that the original was made in his office testified also that the scale of the plan referred to was a reduced lithographic scale, and that the scale would appear different by measurement, but stated that he was very familiar with the plan and that the width of the road as shown was about four rods at different places, including the place in question. The width to the eye is the same throughout. The plan does not purport to be drawn to scale. It seems to us quite impossible to say that the railroad, by accepting a deed referring to. a different part of
