266 Mass. 208 | Mass. | 1929
This is a petition to register title to land. The questions involved relate to the location of its westerly boundary line.
It appears from the decision of the judge of the Land Court that “The petitioner owns a tract of land in Medford bounded northerly by High Street, southerly by the Mystic Valley Parkway and westerly by the easterly line of Winthrop Street. The land slopes southerly from High Street to a brook near the Parkway, the grade of Winthrop Street being several feet above it. Along the easterly side of the travelled road, at the top of the banking, is a fence which has existed substantially in its present-location since at least 1874. The petitioner contends that the easterly line of Winthrop Street is coincident with the line of. this fence. The respondent city contends that the easterly line of Winthrop Street is the
The strip of land in dispute has never been used as a part of the travelled way but so far as necessary has been used for banking in the construction of the highway. The judge found that the line to which the petitioner acquired title was the line of Winthrop Street as located as a county way in 1857, a line accurately determined by existing monuments and correctly shown on the filed plan. A decree for the petitioner to that line was ordered.
The petitioner’s contention is based upon R. L. c. 53, § 1 (now virtually repealed. See St. 1917, c. 344, Part VI, § 1) which provided in part that “If buildings or fences have been erected and continued for more than twenty years, fronting upon or against a highway, town way, private way, . . . street, lane or alley . . . and from the length of time or otherwise the boundaries thereof are not known and cannot be made certain by the records or by monuments, such buildings or fences shall be taken to be the true boundaries thereof. If boundaries of such ways or places can be made certain any building or fence thereon may upon the presentment' of a grand jury be removed as a nuisance unless it has continued at least forty years.” This statute had its origin in St. 1734-5, c. 2, § 2, which, in its title and preamble, purported to be an act to prevent encroachments and encumbrances upon highways, and defined the rights as between adjoining owners and the public when an encroaching fence has been maintained a specified number of years. In Commonwealth v. Tucker, 2 Pick. 44, 46, the court referred to the statute as containing “a provision in favor of persons who have encroached and have had possession for a certain number of years.” In Plumer v. Brown, 8 Met. 578, 581, the opinion stated that the statute was “not intended to protect individuals from the encroachments of the public, but to protect the public against the encroachments of individuals.” In
The rights of the public in the whole width of the way as located and laid out were not lost by using less than the whole width for the travelled way. Harrington v. County Commissioners, 22 Pick. 263, 265, 268. Compensation to landowners is based on the full width taken even though a part only is constructed for travel. Como v. Worcester, 177 Mass. 543. The use of a part of the land taken for an embankment to support the travelled way is a use of the land for a highway purpose. Doon v. Natick, 171 Mass. 228. A municipality is under an obligation to maintain railings where steep banks or dangerous declivities exist so near the travelled road as to expose people travelling thereon to injury. G. L. e. 84, § 15. Sparhawk v. Salem, 1 Allen, 30, 32. Commonwealth v. Wilmington, 105 Mass. 599, 601.
The petitioner had the burden of proving that he was entitled to have the strip of land in controversy registered. The findings of the judge of the Land Court on evidence not reported are final. G. L. c. 185, § 15. Levenson v. Ciampa, 251 Mass. 379, 382. Boston Five Cents Savings Bank v. Massachusetts General Hospital, 255 Mass. 583, 586. No error of law appears either in his refusal to give the rulings requested or in the order entered.
Order for decree affirmed.