Webster v. City of Lowell

Field, J. Hanover Street, which crosses Moody Street at a right angle, and which runs nearly north and south, at its northerly end was a cul de sac, and the city of Lowell discontinued a portion of it as a highway, measuring eighty-five and eight tenths feet southerly from the northerly end, so that, after the discontinuance, the northerly end of the street was a line drawn across the street from “ the southwesterly side of the Tremont and Suffolk Mills’ new storehouse, on the easterly side of said street.” The land of Mary E. Webster, of whose estate the petitioner is administrator, lies southerly of the land of the Tremont and Suffolk Mills, and abuts on Hanover Street on the easterly side about eight feet and eleven inches “ south of the line of discontinuance.” The petitioner contended that his intestate, and those under whom she claimed, had acquired, by prescription and not otherwise, a right of way, of the width of about twelve feet and of the length of about one hundred and eighty feet, over the land lying to the north of her said real estate, throughout its entire length from Hanover Street to Tremont Street, a street running parallel with Hanover Street, and also extending northerly from Moody Street, and that the outlet of said way would be narrowed from about twelve feet to about eight feet and one inch by the discontinuance. If there were such a right of way appurtenant to the estate of Mary E. Webster, it must have run easterly from Hanover Street, and, before the discontinuance, those owning the estate could have used the northerly part of Hanover Street, and a way about twelve feet wide, but, after the discontinuance, the way where it entered Hanover Street was only about eight feet and one inch wide. The first exception is to the refusal of the court to admit as evidence the record copy of a deed from the petitioner to one Naomi Richards, in 1880, of the premises set out in the petition, and which he had conveyed to Mary E. Webster in 1876. The petitioner was a witness, and, on cross-examination, had denied that, after he gave a deed to Mary E. Webster, under which he, as the administrator of her estate, claimed to maintain the petition, he gave a deed to Richards. The deed recorded contained a covenant that the grantor was the sole owner in fee of the estate. No objection was taken that the original deed was not produced. If the petitioner conveyed the estate to Mary E. Webster in 1876, [338] and the deed was properly recorded, any conveyance which he might make or attempt to make afterwards would not affect her title, or convey any title to the grantee. If the execution and delivery of the deed to Mary E. Webster in 1876 was disputed, and he had testified to its execution and delivery, evidence of any acts of his inconsistent with this testimony might be given by way of contradiction, as affecting the credibility of his testimony. We cannot say that there might not be such a state of facts that the evidence here offered would be held fo be of this character. But no such facts appear in the exceptions. The petitioner was first asked, on cross-examination, if, at any time subsequent to the deed to Mary E. Webster, and before her death, he had owned the estate, or had received a deed of it from any other person, to which he answered in the negative. He was then asked if he had not, about the year 1880, given a deed of the estate to one Richards, and in said deed covenanted that he was sole owner; to which he answered, that he had not given such a deed, and that, if he had, it was a mistake. It was for the purpose of contradicting him in his testimony that the evidence objected to was offered. It does not appear to have been disputed that the petitioner executed and delivered to Mary E. Webster a valid deed of the estate in 1876, or that this deed was not properly recorded, and it is immaterial whether, after this, he gave a deed of it to any other person; and evidence is inadmissible to contradict a witness upon an immaterial matter. That the witness, in the capacity of administrator of the estate of Mrs. Webster, is the petitioner, does not make acts done by him on his own account during the life of Mrs. Webster competent evidence against her estate. The exception, that the court refused to rule that, in estimating the damages, “no part of the discontinued portion of said Hanover Street except that on which said passageway abutted should be taken into account,” must be overruled. Owners of land abutting upon a street have the right to the use of the street in connection with their land throughout its entire length; they can recover only special damages, but we do not see how it affords any aid in measuring these damages to assume that they are the same as if Hanover Street had, before the discontinuance, extended only to the northerly boundary of the passageway, [339] or as if the city council had discontinued only a strip across the street three feet and eleven inches wide, and bounded on the north by the northerly line of the passageway. The exception to the refusal to rule that there was not sufficient evidence to warrant the petitioner in going to the jury, is overruled. We are not satisfied that the whole evidence is reported, and the evidence for the respondent, that the owners of the servient estate had from time to time interrupted the use of the way by the petitioner and her predecessors in title was for the jury, and there was some evidence of an open and adverse use, under a claim of right, for more than twenty years by the owners of the estate described in the petition. There was evidence of a passageway from Hanover Street to Tremont Street, and that gates and other barriers, at different times, had been erected across the passageway at places between the two streets, or at the Tremont Street end; but “no witness testified that any gate or other barrier had ever been placed in that part of the passageway between Hanover Street and the rear of the premises of the petitioner’s intestate, or that her use of that portion of the passageway, or that of former owners of her estate, had ever been interrupted.” It is possible that a right of way may have been acquired to and from Hanover Street, and from and to all parts of the premises described in the petition, and that no right of way had been acquired from these premises to Tremont Street, or through the passageway from street to street. The court instructed the jury, in substance, that if they found that Mrs. Webster, as the owner of the estate, had acquired a right of way to and from Hanover Street over the land which abutted upon the discontinued portion of Hanover Street, “ it was immaterial whether she had a right to pass to and from Tremont Street or not.” This ruling apparently was given, not as affecting the damages, but the right of action, and we shall so consider it. One contention of the respondent in his brief is, that •“ the petitioner, having claimed a right of way in the passageway throughout its entire length from Hanover Street to Tremont Street, and having relied upon a particular use of said passageway to prove such right, could not, if he failed to establish such right, rely upon the very same use to establish a right [340] in a part only of said passageway.” The petition describes the premises by metes and bounds, “ together with a passageway upon the northerly side of the premises.” By the claim of the petitioner, the respondent must mean his contention at the trial in regard to the nature and extent of the right of way. The respondent relies upon the rule of the common law, that prescriptions presumed to be founded upon grants which have been lost must be strictly proved as alleged. The petition is so genera,!, that proof of a right of way only to and from Hanover Street is not inconsistent with the allegation concerning the passageway ; and no objection has been taken to the form of the petition. We have not adopted in our practice, under the statutes providing for the assessment of damages for discontinuing a highway, all the technical rules of pleading at common law; and the proof, in any view of it, was not inconsistent with the petition. Of the first request for instructions it may be said that it asserts that the effect of the interruptions to the adverse use by the erection of the gates or fences is to make the use permissive, while the effect in fact is to destroy the continuity of the use by the assertion of the paramount right of the owner over the land. If the request had been granted, the petitioner would not have been entitled to damages, if he had only proved a right of way from the premises to Hanover Street, on which there was no evidence that any fence, gates, or barrier had been placed. The second request ought not to have been granted; because, although the tenants and employees of the Suffolk and Tremont Mills might have used the way permissively, the owners and tenants of the Webster estate might have used it adversely. See Fitchburg Railroad v. Page, 131 Mass. 391. The third request for instructions to the jury is a repetition of the first request for a ruling during the trial. The fourth request is substantially made up of the first and second combined, with some additional facts. The effect of interruptions to the use of the way, by fences and other barriers between the premises described in the petition and Tremont Street, upon the question whether a right of way had been acquired from the premises to Hanover Street, was rightly left to the jury. Whether the jury found that there had been any such [341] interruptions, we do not know. To acquire a right of way by prescription, there must be an adverse use of the way for twenty years, and this use must be continuous, and as of right. If the use is interrupted by the owner of the land, by obstructions placed upon it in the exercise of his right to prevent the use of the way, the continuity of the use is broken. Whether the interruption is acquiesced in by the claimant of the right of way in such manner that the subsequent use must be regarded as permissive, is a question for the jury upon the facts. As the exceptions find that “the jury were instructed, in terms not excepted to, as to what must be shown to establish a right by prescription," we cannot suppose that the plaintiff’s fourth request was intended to be directed to the necessity of an uninterrupted use for twenty years in order to establish a right of way by prescription, or that the instructions given by the court on this point were not satisfactory to the respondent; and it must be considered that this request was properly refused, for the reasons given in considering the first and second requests. The fifth request was properly modified by the court. The sixth request was rightly refused. A private right of way could not be acquired in Hanover Street, while it was a public highway, by using the street for the purposes of travel; and, on the discontinuance of a part of the street, the owners of the land held it discharged from the public easement, and there was then no private right of way over it which was appurtenant to the land described in the petition. Exceptions overruled.