Fitz v. Nantasket Beach Railroad

W. Allen, J. The first question relates to the effect upon the value of the petitioner’s land of the right of way appurtenant to it. It is admitted by the respondent, that the right could remain appurtenant to any lots into which the land might be divided. The instruction that the way “ must still be used under the same restrictions that now appertain to it, that the way must be used conformably to the character which it now bears, and I so instruct the jury, and leave them to say, upon their view of the way and upon the evidence in the case, what the use is and what the restrictions are,” cannot be objected to. The objection is to the refusal of the judge to give the instruction prayed for, that if the way had been “ through gates and bars, and for the passage of cattle to and from the pasture, and for such incidental uses only as would belong to a' way leading to and from a pasture, then, if the character of the Fitz land changes from a pasture to building lots, the right to use that way as an open way, by occupants of cottages erected on that land, would not be included in the rights of way as now existing”; and to the instructions given, that the continued existence of the way does “ not depend upon the land remaining pasture land ”; that “ it would be as available, if a man had á cottage-house there, for him to use it as a cartway, and for the purposes for which it is now used, as if be still had a pasture there ” ; and with reference to any number of cottages which might be built 38 upon the land, that “ each one of them would have the right to use the way as an ancient passageway and as a cartway, just as the evidence characterized it and indicates it to be.” The evidence was, that the land was separated from the highway by land of one Stearns, over which was a right of way by prescription appurtenant to the petitioner’s land, which the exceptions state was a “ cartway through gates and bars.” Stearns was a witness, and testified that the way, which was through a gate at the highway, was “ an ancient cartway, — a right to cross his land.” The husband of the petitioner was a witness, and testified that it was “ an ancient right of passage over the land of Stearns by prescription, that his wife had a right to it, and that it was an inherent right in the land.” There was no evidence to contradict this evidence as to the way. It appeared that the land was known as the “ Loud pasture ”; that there was no building upon it; and that the only income which had been derived from it was rent paid from time to time by persons who had hired it for pasturage purposes. A view of the premises was had by the jury. However correct the instruction asked for by the respondent may be, as matter of law, it was not applicable to the evidence. It does not appear that there was any evidence of the particular use that had been made of the way, or that the use had been restricted to driving cattle to and from pasture; on the contrary, it is expressly stated that there was nothing to contradict the testimony that it was a cartway, and a right of passage over the land. The court did not designate the particular uses which had been and might be made of the way, or prescribe the restrictions upon its use; it carefully left these to the jury, and only in effect ruled that the way which the uncontradicted evidence showed to be appurtenant to the land would remain appurtenant to the parcels into which it might be divided. We think that this ruling, and the instructions given in accordance with it, were correct. The objection to the instructions, that the jury, in estimating damages, should not consider the probability or possibility that a highway would be laid out over the railroad, was not insisted on. Exceptions overruled.