Keane v. Old Colony Railroad

Allen, J. There was evidence tending to show an implied license by the plaintiff for the continuance of the railroad for several years prior to the date of the writ; but the existence of such license was in dispute. Such license might be implied from circumstances, and the plaintiff no longer disputes the competency of the evidence offered for that purpose of facts which happened before the date of the writ. Merrick v. Plumley, 99 Mass. 566. But he contends that such license was revocable, if it ever existed, and that the bringing of the action was a revocation, and that evidence of what took place afterwards was irrelevant and incompetent. Assuming that the bringing of the action was a complete interruption of any previous license, yet it is conceivable that the plaintiff might afterwards assent to the [208] operation of the railroad. If it could be shown by clear evidence that he did so assent, would that fact have any tendency to show that he also assented before the bringing of the action ? We cannot say that such subsequent assent might not be considered by the jury. If it would be competent to show such subsequent assent by clear and explicit evidence, as, for example, by a written license without consideration, then the fact might also be shown by circumstantial evidence. The mode of proving it is not material. . The fact of the interruption of the license by the bringing of the action would also be considered by the jury. Notwithstanding such interruption, we cannot say that it was outside of the discretionary power of the court to admit the evidence. Morris v. French, 106 Mass. 326. Sherman v. Wilder, 106 Mass. 537. Thayer v. Thayer, 101 Mass. 111, 114. Lane v. Moore, 151 Mass. 87, and cases cited. Commonwealth v. Finnerty, 148 Mass. 162. Todd v. Rowley, 8 Allen, 51. Mayer v. People, 80 N. Y. 364, 373-376. There might be a purpose substantially continuous, though interrupted for a short time by the single act of bringing the action. The consent of the selectmen could of course give no authority to lay or operate the railroad over the private way, but was put in, we presume, in order to show a right to cross Howe Street. Whether strictly competent or not, it became immaterial, because the judge in the clearest and most explicit manner instructed the jury that the plaintiff had shown beyond any kind of doubt that the railroad was on his land, and that this established his right to recover unless the defendant showed that he licensed and permitted it to go there and stay there. There could be no mistaking the proposition that the defendant must fail in its defence unless it established that such permission was given by the plaintiff. We see no chance for any misapprehension on the part of the jury. In the opinion of a majority of the court, the entry must be Exceptions overruled.