Humphreys v. Old Colony Railroad

Allen, J. It was found at the trial that the plaintiffs’ right to use Freeman Street as a way had not been extinguished, and this finding is to stand provided the facts would warrant it. The plaintiffs conceded that Freeman Street was only a private way. If it is assumed in favor of the defendant that it had power to close this way by laying out its railroad across it, still, upon the evidence, the finding of the court was warranted. The location across the street by its terms included so much of the street as was contained between the exterior lines of the location. This is the chief fact relied on by the defendant to show an extinguishment of the way. The location, however, crossed [327] several other streets not far distant, and among them Dorchester Avenue, which was an old and well known public way; and the mention of all of them was similar. It could not be supposed that Dorchester Avenue was to be closed to public travel. There is nothing in the language of the location to show an intention to close up Freeman Street, except the mere description of the exterior lines, which are defined as crossing that street in the same way that they are defined as crossing other streets. The street is repeatedly referred to as Freeman Street, and at the conclusion of the delineation of the location, reference is made to a plan for a more particular description; and on the plan Freeman Street is shown as an existing street called by its name, and crossing the railroad in the same manner that Dorchester Avenue crosses it. Taking the location and the plan together, the most that can be said for the defendant is that it might be considered as doubtful whether it was intended to close Freeman Street. Under this state of things other documents nearly contemporaneous may be looked at, and it appears that about a month before the location was filed the railroad company took from the predecessor in title of one of the plaintiffs a deed of a strip of land which was covered, or substantially covered, by the subsequent location, lying westerly of Freeman Street and abutting on that street, which is therein repeatedly referred to as Freeman Street. This deed would have the effect to convey the grantor’s title to the middle of the street, reserving to the grantor a right of way over the street. Gross v. Calhane, 113 Mass. 423. Less than a year after the location was filed, the railroad company took from the predecessors in title of the other plaintiff a deed of a strip of land lying opposite to the other lot, and easterly of Freeman Street and abutting on that street, which in this deed also is twice referred to as Freeman Street. This deed tends to show that the railroad company at that time understood and intended that the street should be kept open for travel. White v. New York New England Railroad, 156 Mass. 181. In addition to this, it appears that after the filing of the location and the construction of the railroad, the division roadmaster of the railroad company placed planks between the rails on Freeman Street, and the planking has since been maintained by the [328] railroad company; and the existence of a travelled place at this crossing, and the fact that it was planked, have been known to the company since its road was built. This in a case otherwise doubtful would be strong evidence to show that all parties, including the railroad company, understood that the crossing was not to be closed. See Winchester v. Glazier, 152 Mass. 316, 323, and cases there cited. Fitchburg Railroad v. Frost, 147 Mass. 118. On the whole, it seems to us that the findings, for the plaintiffs were right. Judgments for the plaintiffs.