Fitchburg Railroad v. Page

Ehdioott, J. It appears from the report that Forrest Street had been travelled by the public for more than twenty-five years, through its entire length from Main Street to Tannery Street, and that during that time the portions of the street north and south of the plaintiffs railroad had been kept in repair by the town; and that the plaintiff had, during that period, planked and kept the crossing itself in repair. It also appears that “ no mode of passing with horses or carriages from one side of the railroad station to the other was shown except the crossing in question.” No record of the laying out of any portion of Forrest Street was put in evidence, nor of any authority from the county commissioners to lay it out over this crossing. See Gen. Sts. c. 63, § 59, ■ It is well settled in this Commonwealth, that a way by prescription may be established, by evidence of user by the public, adverse and continuous, for a period of twenty years or more; from which use arises a presumption of a reservation or grant, and an acceptance thereof, or that it had been laid out by the proper authorities, of which no record exists. Commonwealth v. Coupe, 128 Mass. 63, and cases cited. It was said by Chief Justice Shaw in Jennings v. Tisbury, 5 Gray, 73, 74: “ To establish such a way, where there is no proof of dedication, and where the element of dedication does not subsist, it will be necessary to prove actual public use, general, uninterrupted, continued for a certain length of time. In general, it must be such as to warrant a presumption of laying out, dedication or appropriation, by parties having authority so to lay out, or a right so to appropriate, like that of prescription or non-appearing grant in case of individuals. It stands upon the same legal grounds, a presumption that whatever was necessary to give the act legal effect and operation was rightly done, though no other evidence of it can now be produced except the actual enjoyment of the benefits conferred by it.” No question is made by the plaintiff that, by the public use for more than twenty years, those portions of Forrest Street north and south of the crossing had become a public highway. It is contended, however, that the use of the crossing for the same period could not make it a legal public highway, because that could be accomplished only by the authority of the county commissioners. But such a use, in the [396] absence of any express prohibition, warrants the presumption of a laying out over the crossing, having the authority and sanction of the county commissioners; or, as is stated in the passage above quoted, “ a presumption that whatever was necessary to give the act legal effect and operation was rightly done.” We are of opinion that the third instruction requested by the defendants should have been given. It was a question for the jury to determine, upon all the evidence, whether the use by the public of the crossing was adverse and under a claim of right, or whether it was permissive and allowed by the plaintiff corporation. The presiding judge in substance instructed the jury, that if the plaintiff constructed the crossing for its own uses, and those of its customers, the fact that the public also used it under a claim of right, would not be such an adverse use as would make it a way by prescription, although it might be continued for more than twenty years. It was held in Commonwealth v. Petitcler, 110 Mass. 62, that a road may become a highway by prescription, although opened by a tavern-keeper over his own land, for the accommodation of the tavern ; and it was said by Mr. Justice Wells, in delivering judgment, that “a road to a tavern, as well as the tavern itself, is not for private convenience only, but also for the public accommodation.” This language applies with greater force to a railroad station. The fact that a way is laid out to a railroad station, and is used by the corporation and those having occasion to go to it, does not prevent its becoming a way by prescription, if used by the public adversely to the corporation for more than twenty years; especially where it is used as a thoroughfare during that period, and not merely as an approach to the station. This case is to be distinguished from the case of Durgin v. Lowell, 3 Allen, 398. In that case, the way was private property, laid out and kept in repair by a private corporation for its own separate use, though open to travel by the public. It was held that it did not become a way by dedication, there being no intent to dedicate, and that the use by the public must, under those circumstances, be regarded as permissive. And the use being thus regarded as permissive, and not as adverse, there could be no way acquired by prescription. Case to stand for trial.