Hollenbeck v. Rowley

Dewey, J. 1. The ruling of the presiding judge, permitting the plaintiff to prove the existence of a certain fence on the northern side of the highway for more than twenty years, for the purpose of establishing the northern boundary of the highway, furnishes no legal ground for disturbing the verdict. There was in the case sufficient evidence to show that this boundary could not be made certain by record or by monuments. That a portion of the evidence upon this point was introduced after the evidence as to the fence was admitted, is not now material. The facts being in the case, the evidence as to the fence was nroperly before the jury. Gen. Sts. c. 46, § 1. 2. The court properly instructed the jury that the legal effect of the deeds introduced by the plaintiff was to show that the land thereby conveyed to him extended to the centre of the highway. 3. The rejection of the photographic view of the premises is not a ground for exception. It was not verified by the oath of the photographer, and was only offered as a “ chalk representation ” of the premises. As such, it was in the discretion of [476] the presiding judge, in view of its imperfection, or want of fulness of description, as well as of its immateriality in reference to the understanding of the case on trial, to admit or reject it. 4. The court properly declined to instruct the jury that the defendant was not liable in this action for the alleged trespass, if he did no more than a highway surveyor might reasonably have done in the ordinary discharge of the duties of his office; and properly instructed them that if the trespasses were committed north of the travelled path in use, and upon the plaintiff’s land, they were not justifiable, although they might have effected a beneficial widening of the road. It was undoubtedly competent for the defendant, or any other person having occasion to use the public road, to remove all rails, bars, rocks, or other obstructions placed on the same, preventing the free and convenient use of the road. Gen. Sts. c. 46, § 4. But entering upon land without the travelled road, and by excavations or embankments widening the road, to the prejudice of the adjacent owner, or in disturbance of his soil, is an unauthorized act. Gen. Sts. c. 44, vest in the surveyors of highways the authority for making all necessary repairs on public highways ; and individuals, unauthorized by such surveyors or other lawful authority, cannot lawfully enter upon the land of an adjacent owner situated without the limits of the worked road, and take and remove earth; nor can they interfere with the same by placing rocks, stones and rubbish upon his land without the limits of the worked and travelled way. The plaintiff having been shown to be the owner of the soil where these trespasses were committed, subject to the easement of the highway, this action may well be maintained against the defendant for the acts complained of. This principle seems fully sustained by adjudicated cases in this commonwealth and elsewhere. Perley v. Chandler, 6 Mass. 454. Stackpole v. Healy, 16 Mass. 33. Peck v. Smith, 1 Conn. 133. Reed v. Leads, 19 Conn. 187. Cortelyou v. Van Brundt, 2 Johns. 357. Jackson v. Hathaway, 15 Johns. 447. [477] 5. The defence of a license from the plaintiff to the defendant to do the acts now complained of as trespasses was not set up in the answer of the defendant; and, that objection having been taken by the plaintiff at the trial, the court properly excluded all the evidence offered upon that point. Upon the whole case, the court see no ground for sustaining the exceptions. Exceptions overruled.