Weld v. Brooks

152 Mass. 297 | Mass. | 1890

W. Allen, J.

The questions whether a way which existed over the plaintiffs’ lands was a public way by prescription, and whether it was a private way appurtenant to land of the defendant Meyer, were tried together. The jury found that it was a public way.

1. Exception was taken to the admission of a plan referred to in the deed from Nathaniel Wheeler to John M. Mayo, dated December 1, 1846. No exception was taken to the admission of the deed. The plan was not recorded, but was sufficiently identified. The land conveyed included part of the close in question, and Mrs. Weld claimed under the deed, through John Weld, her husband and devisor, to whom Mayo conveyed in 1868 by a deed, containing the same description of land and right of way as in Wheeler’s deed, but not referring to the plan, and the plaintiffs put the deed in evidence. We think that the plan, as well as the deed, was admissible as evidence of the existence and location of the way.

2. The defendants offered an attested copy of a deed from John M. Mayo and wife to Charles M. Mayo, dated in 1860, and an attested copy of the plan named in and recorded with the deed. The parties to the deed are not living. The land conveyed is described as bounded “ northerly by a street leading from Bourne Street to and across the Providence Railroad, on land now or late of Ebenezer Weld.” Said land of Ebenezer Weld, who was the father of said John Weld, is the close described in one of the plaintiffs’ writs, and the location of the way over that land prior to 1862, as well as the nature of the way, was in dispute. It is objected that the deed is between third parties, and is mere hearsay and reputation. Without considering whether the evidence would be competent to prove the location of a private way, we think it was competent upon the question of the existence and location of a public way, as a matter of public and general interest upon which reputation is admissible. 1 Greenl. Ev. §§ 128,139; 2 Best, Ev. (Am. ed.) § 497.

3. The fourth prayer for instructions was properly refused. A way may be used by the public as a public way, although it was opened by individuals as a private way. The instructions given as to what will constitute an adverse public use of a private way, were full and unobjectionable.

4. The fifth prayer for instructions was properly refused. The defendants were not bound by any allegation or claim of a public way. It was enough if they proved that there was a public way where the alleged trespasses were committed.

5. The sixth prayer for instructions, that the proved or admitted acts of the railroad company in putting up fences on each side of the railroad would prevent the use of the way being continuous, was properly refused. No such acts of the railroad company were admitted, and it was for the jury to say what acts were proved. Full and correct instructions were given in regard to the effect of such obstructions as the jury might find to have been made at the railroad.

6. There was evidence that John Weld, the plaintiff’s predecessor in title, sold gravel from the land near the railroad, described in the plaintiff’s writs, and that a branch track was laid from the railroad over the way for the purpose of removing the gravel. The evidence in regard to the extent of the obstruction thereby caused to the way was conflicting. Some witnesses testified that the way was excavated and made impassable by carriages, and others that there was no substantial change in the way, or interruption to the travel. The seventh prayer for instructions was to the effect that, if the way was excavated and obstructed as testified to by some of the witnesses, such acts would constitute interruptions of the use of the way. While the court very properly declined to adopt the words of this prayer, it gave it in substance when it instructed the jury that if they found that there was a substantial interruption of the travel, that would be an interruption of the use ; and the instruction that, if the jury found that carriages and people did go over the way as before, and that there was travel over there by the public as before, they might find that the obstruction was not an interruption to the public use, was not inconsistent with the defendant’s prayer.

7. The mere fact that John Weld, then owner of the land, put a fence, or barrier, across the way, with no evidence of the occasion or circumstances or effect of the act, would not, as matter of law, constitute an interruption of the use of the way, and the eighth prayer for instructions ought not to have been given without modification, and the modification made by the court by adding the words “ so as to prevent travel,” seems proper.

The plaintiffs object, that the court, in its instructions, did not allow sufficient effect to the acts of the landowners as negativing acquiescence on their part, and argue that an act of the servient owner asserting his right, though not interfering with the actual use by the public, would work an interruption of that use. The general instruction that the use must be by the public, adverse, and under a claim of right, and not permissive, and must be continuous and uninterrupted, was given in the words of the plaintiffs’ third prayer for instructions. This involves the proposition, that, if the landowner does no act which breaks the continuity of the public user, his acquiescence, so far as it is necessary to be shown, will be implied.

The other questions presented in the exceptions relate to a private way, and seem to have been rendered immaterial by the verdict.

Exceptions overruled.