Parker v. Inhabitants of Framingham

Shaw, C. J. A preliminary question was made, whether this case rightly comes before this court by appeal, it being a judgment of the court of common pleas, setting aside the verdict of a sheriff’s jury, by which damages had been awarded to the com plainants, on laying out a town way. The court are of opinion that this was a judgment of the court of common pleas, founded on matter of law apparent on the record, and therefore that it is within the provision of St. 1840, c. 87, § 5, allowing an appeal. It is not within the spirit or meaning of <§> 4, prohibiting an appeal from a judgment of the court of common pleas upon the verdict of a jury. That plainly applies to common law cases tried by jury in the court of common pleas, where the effect of an appeal would be, to annul the verdict, as of course, and open the case to a jury trial in this court. It was further contended that the court could not take no.ice of the decisions given by the sheriff upon points of law, on the — 264 — trial before him, because they appear only by his report, and such report is no part of the record ; and the counsel relied on the cases of Coolidge v. Inglee, 13 Mass. 50, and M’Fadden v. Otis, 6 Mass. 323. But the case at bar is wholly distinguishable. Those were the ordinary cases of an action tried in this court, at nisi prius, where the judge, on the motion of either party, consents to reserve a question for the consideration of the whole court, and, to enable them to understand it, makes a report of so much of the case, as to show the application of the decision to the case. The report in such case is wholly distinguishable from a bill of exceptions, which, when duly tendered and allowed, becomes part of the record, and of which the purpose is, to place matter upon the record which would not otherwise appear there; with a view, either to a writ of error, or to the ■more summary mode of revision provided by statute. But where a judge at nisi prius consents to reserve a point,- the report is a mere authoritative communication by the judge to his fellows. It might be, and sometimes is, made orally at the hearing; but, for the convenience of all parties, is more generally made in writing: There the report is no part of the record; the result, which is entered of record, is the granting or refusing of a motion for a new trial, setting aside the verdict, or entering a judgment upon it, as the case may be. In one class of cases, it is true that the court will order a nonsuit or default, amend or reverse a verdict, and enter judgment definitively upon such nonsuit, default, or altered verdict; but, in all these cases, it is done by the consent of the parties, given and noted when the case is so reserved; and the act of the court is warranted and justified by such consent of parties. But the case of the report of a sheriff", or of the officer appointed to preside over the trial before a jury, is altogether different; it is made alio intuitu, and with a different legal effect. It is provided for by the Rev. Sts. c. 24, <§> 25, as follows: “ The person who shall preside at any such trial ” (having previously directed that such presiding officer shall be the sheriff", or some person appointed for the purpose by the county commissioners,) “ shall decide all questions of law arising on the trial, which would be proper for the decision — 265 — of a judge; and shall direct the jury upon any question of law, when requested by any party; and shall certify to the court, with the verdict, the substance of any decision or direction by him given, when any party shall request it.” This statute gives such a report the character and effect of a bill of exceptions allowed. It is to be returned with the verdict. The obvious purpose is, to enable the court of common pleas to revise the decisions made by the sheriff in matter of law, and if erroneous, to set aside the verdict. In no other way could a party aggrieved by an erroneous decision have the benefit of the law of the land, to which he is entitled. But if the court of common pleas can rightfully act upon such report, who have authority to adjudicate upon the verdict and set it aside for any good cause, (one of which certainly would be, that it was founded upon legal decisions or instructions erroneous in matter of law,) a fortiori must this court, whose special province it is to revise the questions of law arising in the case, receive it and act on it, as part of the record. Supposing the case rightly before us, the question is, whether the appellees, the original complainants, are entitled to damages, on the facts stated. The facts are briefly these: In 1808, the Worcester Turnpike was laid out, and, at the place in question, passed through the land of Thomas Buckminster, for whom dam ages were assessed, according to law, for the land taken. In 1811,’ Buckminster sold the land, in right of which the appellees now claim, lying on the northerly side of the Worcester Turnpike, and between that and an old highway, to persons through whom, by mesne conveyances, it has come to them ; and about the same time, conveyed house lots, on the other side, (the south side of the Worcester Turnpike,) to various persons who subsequently erected houses on them, building on the turnpike. These pacels of land were described, in all these cases, as bounded “by the Worcester Turnpike.” This turnpike, being four rods wide, was discontinued in 1841, and subsequently a town way was duly laid out, two rods wide, over a part of the same land which was formerly embraced within the limits of the turnpike ; and it is upon this last act of laying out the town way that the — 266 — appellees claim damages. It is therefore manifest that, if the appellees, by their conveyance, acquired no title in the fee of the soil under the turnpike, or if they did, but yet acquired it under such restrictions that it must be always kept open as a way, then they are not entitled to damages. By the well established rule of law in this State, the taking of land for a highway, including turnpikes, did not divest the fee of the owner, but created a perpetual easement for the public ; so that, when the turnpike was discontinued, the fee remained in Buckminster, or his heirs or assigns. Whether the conveyance of land bounding on a highway is to be presumed a conveyance of the soil under the way, to the centre line, if the grantor owns it, is a question which has been much discussed, and is one of some difficulty in some of its aspects. When, for instance, an ancient way, the origin of which is not known, is discontinued, whether the adjacent owners shall be deemed owners to the middle of the way, when there is nothing else to determine their rights, may be a difficult question. In the case of Webber v. The Eastern Rail Road Co. the question, was started, but it was not considered necessary in that case to decide it. It was however then suggested, that as the owner of land adjoining a highway may convey his adjoining land without the soil under the highway, or the soil under the highway without the adjacent land, or both together, if the soil under the highway does pass by a conveyance, it must be as parcel, and not as appurtenant. It was considered, therefore, as a question of construction, depending upon the intent oí the parties as expressed in the descriptive part of the deed, explained by all the other parts of the conveyance, and by the localities and subject matter to which it applies. Webber v. The Eastern Rail Road Co. 2 Met. 151. That where a conveyance is made of land bounding on a street, describing the land with its appurtenances, the land under the street, belonging to the same owner, did not pass, was held by the supreme court of the United States, in the case of Harris v. Elliot, 10 Pet. 25. Indeed, if it were to be regardea in law as an appurtenance, it would pass by a grant of the — 267 — adjacent land, whether appurtenances were expressed or not. Kent v. Waite, 10 Pick. 138. Considering the question as one of intent, depending upon the construction of the deed, the only point here open is, whether the terms, “ bounded by the Worcester Turnpike,” meant the external limit of the four rods appropriated as a turnpike, or the filum mee, the middle of the way. The turnpike had then been recently laid out by an exact description, recorded, and well known and understood. The parties knew that the turnpike was liable to be discontinued, but both had an interest, in that event, in having the same space kept open for their own use as a way. The grantor owned lots on the other side, fit for house lots, having no other means of access to them but the turnpike, or he had sold them under the name of the turnpike, with an implied grant of a right of way, four rods wide, and therefore had an interest in keeping the way open, in case of a discontinuance of the turnpike. The court are of opinion, that‘under the circumstances, the bound north by the turnpike was a bound by the north side of the turnpike, and that the land under the turnpike did not pass. See O’Linda v. Lothrop, 21 Pick. 292. But we are strongly inclined to the opinion, that if half of the soil of the turnpike did pass to the grantees, it was subject to a perpetual right of way for the other proprietors bounding on the same section of the turnpike, and therefore that they were not damnified by laying it out as'a town way. It is s-settled, rule, that when land is granted, described as bounding on a way, if" is an implied covenant that there is such a way; that, so far as the gratitor is concerned, it shall be continued; and that the grantee, his heirs and assigns, shall have the benefit of it. Parker v. Smith, .17 Mass. 413. It seems reasonable, and quite within the principle of equity on which this rule is founded, to apply it to the discontinuance of a highway ; so that if a man jhould grant land bounding expressly on the side of a highway, if the grantor own the soil under the highway, and the highway, by competent authority, should be discontinued, such grantor could not so use the soil of the highway as to defeat his grantee’s right of way, or render it substantially less beneficial. Whether this — 268 — should be deemed to operate as an implied grant, or as an implied warranty, covenant, and estoppel, binding on the grantor and his heirs, is immaterial. The right itself would be inferred from that great principle of construction, that every grant and covenant shall be so construed as to secure to the grantee the benefits intended to be conferred by the grant; and that the grantor shall do nothing to defeat or essentially impair his grant. This principle would enure to the benefit of the grantees, so far as to secure to them an easement, and an open right of way on the soil of the turnpike, after it was discontinued, as against Buckminster, their grantor, and his assigns; but their easement and right of way have not been interfered with, in laying out the town way. So we think the abutters on the turnpike acquired, as against Buckminster and his assigns, a right of way, to the-extent of the limits of the turnpike as defined in its recorded location, and therefore that the appellfees, had they established a title to the soil under the turnpike, would have taken it subject to a right of way over it; and therefore, that they were not substantially damnified by making it a town way. It was intimated, in behalf of the appellees, that having long occupied a part of the soil of the turnpike, lying between their shop and the travelled part of the road, for laying materials, and other like uses, they had acquired a title by. possession. But we think it very clear, that saeh .occupation was permissive —-án3~hót adverse, and therefore constituted no title by possession. It was not adverse to the owner of the 'soil; because, during the continuance of the turnpike, he had no rig'h.t to, the possession. It' could be no disseizin of the turnpike proprietors, or of the public; for they had an easement only, and no seizin. But further; it is common for farmers and mechanics, and other adjacent owners, to use part of the soil of the highways, turnpikes, and other public ways, especially where they are wide, and where the travelled path occupies a part only of the width. We think this is usually understood to be permissive, and liable at any time to be suppressed as a nuisance; and it — 269 — would be contrary to the truth of the case and the understand ing of the parties, as well as contrary to true policy and the rights of the public, to consider such use of the highway adverse. The judgment of the court of common pleas, setting aside the verdict for damages for the appellants, is affirmed