Boston & Providence Railroad v. Doherty

Knowlton. J. Under the order of the county commissioners the defendant had a right of way across the plaintiff’s tracks.Since the enactment of the St. of 1841, c. 125, § 1, which is now § 113 of the Pub. Sts. c. 112, the county commissioners have had authority, at the time of estimating damages to landowners for the appropriation of their lands by a railroad company, to order the corporation to construct and maintain such embankments, culverts, walls, fences, or other structures as they judge reasonable for the security and benefit of such owners. Without a right to cross the railroad, a landowner might be entirely cut off from access to a valuable portion of his estate, and there can be no doubt that, under this section, a structure on which the owner may conveniently cross under the track or over it, or on the same grade with it, may be ordered, if the commissioners judge it reasonable for his security and benefit. This has been the practical construction of the statute all over the Commonwealth for nearly forty years, and it has been assumed by the court to be correct. White v. Boston & Providence Railroad, 6 Cush. 420. Keith v. Cheshire Railroad, 1 Gray, 614. Presbrey v. Old Colony & Newport Railway, 103 Mass. 1. Gay v. Boston & Albany Railroad, 141 Mass. 407, 408. [317] The important question in the case is whether the defendant’s easement was extinguished by his license to the plaintiff to close up the way, and by the execution of this license. By the evidence which was introduced, subject to the defendant’s exception, it appeared, among other things, that on account of the great increase of the plaintiff’s business the condition of affairs had become such “ that it was not safe for the operation of the road to continue the way claimed by the defendant and others across the track.” We think this evidence was competent, as showing the relation of the easement to the property of each of the parties, and to the uses that could be made of it, and as bearing upon the construction which the court should put upon the defendant’s acts in' reference to the easement. It is a well established rule of law that an easement may be extinguished, renounced, or modified by a paroi license granted by the owner of the dominant tenement, and executed by the owner of the servient tenement. Dyer v. Sanford, 9 Met. 395. Morse v. Copeland, 2 Gray, 302. Curtis v. Noonan, 10 Allen, 406. Canny v. Andrews, 123 Mass. 155. King v. Murphy, 140 Mass. 254. One cannot acquire an interest in the land of another by executing a paroi license from the owner to occupy or use it, for such a license is revocable. But if the license is to do that upon the licensee’s own land which prevents the further enjoyment by the licensor of an easement in the land, such a license, when executed, is irrevocable, and the effect of it is to extinguish the easement. An easement may be lost by abandonment; and whether there is an abandonment is ordinarily a question of intention. If the extinguishment of an easement by the execution by the owner of the servient estate of a license which prevents the further enjoyment of the easement rests on the ground that the owner of the easement intentionally abandons it, — and where there is a complete extinguishment it may well rest upon that ground, — his intention is conclusively presumed in favor of the owner of the servient tenement who executed the license, because between these parties, when one acts upon the license of the other, the manifest and apparent intention which is acted upon must control their rights, whatever the secret intention of the licensor may be. [318] In the present case, the defendant licensed the plaintiff to obstruct and cut off his way on condition that it would provide him another designated way as a substitute therefor. He must have expected that the execution of the license and the performance of the condition would deprive him of his old way and leave him with a new one. His knowledge of the facts put in evidence, against his objection, shows that he must have understood that he could not longer use the old way after his license was executed. His license was conditional, and his rights were protected by the condition. The plaintiff performed the condition, and in execution of the license made the necessary changes and improvements on its premises, “ destroyed a bridge, part of said crossing, built a fence on the line of the location across the old way, and otherwise interrupted, obstructed, and closed the crossing ” several days before the defendant made any objection, or expressed any dissatisfaction with the arrangement which he had made. We are of opinion that the performance of the condition, and the execution of the license, worked an extinguishment of the defendant’s easement. As against the plaintiff, he must be conclusively presumed to have intended to abandon his easement on the performance of the condition when he gave the license; and the license having been acted upon, and being irrevocable, the abandonment became complete. Injunction to he granted.