Moffatt v. Kenny

Knowlton, J. The place where the plaintiff fell was not a public way for whose condition the city of Boston was responsible. In this Commonwealth there can be no public way by dedication without an acceptance of it by the public authorities. Before the enactment of St. 1846, c. 203, such an acceptance [314] could be shown either by a vote to accept, or by circumstances giving rise to a strong implication, such as frequent and long continued use by the public, and repairing, lighting, or other significant acts of persons authorized to represent the city or town in that behalf. Hemphill v. Boston, 8 Cush. 195. While public use may be important as evidence, it is not of itself sufficient to show such an acceptance. Since the enactment of the statute above referred to there can be no effectual acceptance without a laying out of a way in the ordinary mode prescribed by the statutes. Pub. Sts. c. 49, § 94. Hobbs v. Lowell, 19 Pick. 405. Bowers v. Suffolk Manuf. Co. 4 Cush. 332. Morse v. Stocker, 1 Allen, 150. Hayden v. Stone, 112 Mass. 346. Guild v. Shedd, 150 Mass. 255. In the present case there is no evidence tending to show an acceptance except the evidence of public use, and that alone will not warrant a finding that the street is a public way by dedication. There is no evidence that it is a public way by prescription. Durgin v. Lowell, 3 Allen, 398. Sprow v. Boston & Albany Railroad, 163 Mass. 330. By the indenture of April, 1828, the owners covenanted that the land now known as Byron Street should be forever “ reserved and kept open ” for a public street, “ and ceded to the city government as such whenever they will accept the same.” This was an agreement among the land owners that the public should be permitted to use it until it should be accepted as a street by the public authorities. The public authorities never accepted it. The evidence tends to show that in 1838 the public began to use it under this license, and continued their use up to the time of the accident. In the absence of evidence to show the contrary, it must be assumed that this use which began under a license has continued to be permissive. There is no evidence that it was ever under a claim of right. An adverse right to an easement cannot grow out of a mere permissive enjoyment. Bachelder v. Wakefield, 8 Cush. 243 and cases cited. There is no evidence that the plaintiff was using the way by invitation. She was walking there as one of the public under a license, and had the ordinary rights of a licensee. There is a class of cases where one is upon private land without an invb [315] tation but by permission and for his own convenience, in which there is a representation, express or implied, that constitutes an inducement to a licensee, and creates a duty on the part of the land owner to use due care to have the place as represented. For illustration, if one passing over land as a mere licensee, for his own purposes, should be told by the owner that he would find a certain course safe and convenient and should walk there, the representation of the owner would impose upon him a duty to use reasonable care to have the place safe for the person acting on his statement; or, if he should represent a way across his land to be a public street, his representation would be equivalent to a statement that the place was safe and convenient for travellers, and it would be his duty towards one induced to use it by his representation, to keep it as safe as if it were a public street. See Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368; Murphy v. Boston & Albany Railroad, 133 Mass. 121; Hanks v. Boston & Albany Railroad, 147 Mass. 495; Holmes v. Drew, 151 Mass. 578; Plummer v. Dill, 156 Mass. 426, 430. This is not such a case. The way was doubtless opened for the benefit of the owners and occupants of the adjacent lands, and it has never become a public street. The presumption is that it was maintained for the use of these occupants and such other persons as had occasion to visit them, and that the use of it by the public was merely permissive. Bowers v. Suffolk Manuf. Co. 4 Cush. 332. Durgin v. Lowell, 3 Allen, 398. Pearson v. Allen, 151 Mass. 79, 82. Stevens v. Nichols, 155 Mass. 472. Sprow v. Boston & Albany Railroad, 163 Mass. 330. Moreover, for thirty years before the accident there had been a representation posted at the entrance to the way from the street that it was a private way and was dangerous. This negatived any possible inference that it was a public way, and there is no implied representation by the land owners that the public could go there otherwise than as licensees using a way constructed and maintained for private persons. It is a general rule that a licensee going upon land of another must take the land as he finds it. Of course the land owner is liable if he does him intentional injury, or wantonly or recklessly exposes him to danger. It has sometimes been said that he is liable for a trap upon his land. We are not aware of any [316] decision which distinctly defines the word “ trap ” in this use. It would at least include any very dangerous construction or condition designedly arranged to do injury. But we are of opinion that an owner is under no liability for an unsafe condition of his premises caused by a mere failure to use ordinary care for the safety of persons who may chance to go there by permission while he is using the place for his own proper purposes and is not intending needlessly to expose others to danger. Otherwise there would be no important distinction between his duty to licensees and his duty to invited persons. Certainly the mere fact that a particular danger resulting from a lack of care is not easily discoverable, ought not to create a liability on the ground that there is a trap. In most cases of accident the danger is not known until the injury is received, and often it is from an unseen cause. If there is mere inadvertence or carelessness in doing one’s work, there is no good reason why, in determining whether there is a liability for it, one principle should be applied if the resulting danger is small and a different principle if it is very great. The case of Redigan v. Boston & Maine Railroad, 155 Mass. 44, is decisive of the case at bar. In that case the plaintiff was walking in the evening along a platform of the defendant’s station building, in a place where the public were permitted to walk and where she supposed it was safe to walk, and fell through a trap door which had been left for an hour open and unguarded. It was held that there was no evidence of negligence on the part of the defendant. In that case, as in this, there was nothing to indicate to the plaintiff at the time of the accident that the way was unsafe. In this case, as in that, a careful observer might have noticed that the surface of the way was arranged to be taken up, and that there was a possibility of disarrangement in opening and replacing it. Reardon v. Thompson, 149 Mass. 267, is a case in which the plaintiff fell into an open hole in the ground concealed by the darkness of the night. In neither of these cases was there such a trap as to create a liability on the part of the owner of the premises who permitted the plaintiff to walk there. Verdict to stand.