Wright v. Boston & Albany Railroad, 142 Mass. 296

Wright v. Boston & Albany Railroad

142 Mass. 296 | Mass. | 1886

Field, J.

We assume, in favor of the plaintiff, that a private or public right of way across a railroad may be acquired by prescription, since the passage of the Pub. Sts. c. 112, § 195, and the acts of the Legislature of which this section is a reenactment. St. 1874, c. 372, § 148. Gen. Sts. c. 63, § 102. St. 1853, c. 414, § 4. See Gay v. Boston Albany Railroad, 141 Mass. 407.

*300We assume, too, that if the plaintiff was invited to cross the track where she crossed it, she cannot be said to have been upon the track without right, within the meaning of the St. of 1874, e. 372, § 148 ; and that there was evidence for the jury that the plaintiff was in the exercise of due care.

It is doubtful from the report whether the path had ever been used all the way to North Street, or North Avenue, from the railroad track; but if it had been, the northerly portion had been used only for fifteen or sixteen years. There was no evidence of any defined pathway extending from one public road or place to another, which had been used by the public generally for twenty years. The plaintiff was going from her father’s ' house on the north side of the track to a school-house on the south side, as she had been accustomed to do; but there is no evidence of a private right of way over the railroad, appurtenant to the estate occupied by the plaintiff’s father; or that the owners and occupants of that estate had used the particular way over which the plaintiff.was going, continuously, adversely, and as of right, for twenty years. If any other persons residing on the north side of the railroad had acquired a private right of way over the railroad, that cannot avail the plaintiff. The evidence was insufficient to warrant the jury in finding that there was either a public way or a private way which the plaintiff had a right to use.

The plaintiff contends that the evidence showed that the defendant held out to the public an inducement and invitation to use this path by the peculiar construction and adaptation of the premises, as well as by the acts or declarations of its agents. There was no express invitation by the defendant or its agents. The plaintiff was not using the way for the purpose of transacting any business with the defendant or its agents, or of coming upon the property of the defendant for the purpose of doing anything except to cross its road-bed to go to school. The way across the switch-track was not planked or prepared for use in -* any manner’, except that a clear passage had been left through the ridge formed by throwing up dirt from the ditches on the side of the track. A mere permission or license from the defendant to cross the track is not an invitation. Whether the construction of a crossing over a railroad is such as of itself to *301amount to an invitation, or evidence for the jury of an invitation, by the railroad company to the public to use the crossing for the convenience of the public, must be determined by considering whether the construction was such as reasonably to induce the public to believe that the crossing was a public way. Murphy v. Boston & Albany Railroad, 133 Mass. 121.

The want of a planking over the switch-track, the absence of public ways or public places on each side of the track with which the crossing was immediately connected; the different directions taken by persons using the path, and the irregular course of the path used by the plaintiff after it crossed the switch-track from the north, all tend to show that it was not prepared by the defendant corporation with the intention that it should be used as a public way.

As the plaintiff was on the track without right, and as there was no evidence of wilful or reckless misconduct on the part of the defendant or its agents, the court properly ruled that the action could not be maintained. Johnson v. Boston & Maine Railroad, 125 Mass. 75. Wright v. Boston & Maine Railroad, 129 Mass. 410. Morrissey v. Eastern Railroad, 126 Mass. 377.

Judgment on the verdict.