Howe v. Johnson

Carroll, J. The defendant by warranty deed conveyed a tract of land in Clinton to the plaintiff. The description included a quadrilateral area at the northwest corner which was subject to an easement created by the location of the Agricultural Branch Railroad filed in 1867. The action is in tort, the plaintiff contending that he believed he was acquiring a good title to the entire tract, free from any incumbrance, and was induced to make the purchase by reason of the false representations of fact made by the authority of the defendant. In the Superior Court it was found that the plaintiff could recover for the failure to give him an unincumbered title, and damages- were awarded. The name of the Agricultural Branch Railroad was changed to Boston, Clinton and Fitchburg Railroad Company, St. 1867, c. 153, § 1, and the latter consolidated with the Old Colony Railroad Company, St. 1882, c. 80, and subsequently leased to the New York, New Haven, and Hartford Railroad Company. In December, 1912, a decree was entered confirming the decision of commissioners appointed to abolish certain grade crossings in the town of Clinton, and in January, 1913, the lot was conveyed and the deed delivered to the plaintiff. The defendant asked the court to rule that the plaintiff could not recover; that [384] the plaintiff had a good title to the land conveyed; that the Old Colony Railroad had no rights by way of easement or otherwise in the land; and that the location of the railroad as established by decree of the grade crossing commission did not include any part of the tract in question. These requests were refused. The record recites that the defendant based these requests solely on the decision, plans and decree of the grade crossing commission. It is further stated in the record that there are no express words in the decision, plan or decree discontinuing the location of the Agricultural Branch Railroad and no statement of the width of any new location. The entire evidence is not reported. The location of the Agricultural Branch Railroad established in 1867 was not expressly changed by the decree of the commission, and it cannot be said that such a change is to be implied. The base line of the Old Colony Railroad was changed, and this is fully described, but the report does not attempt to. decide that the old location should be changed or discontinued, and it does not describe a substitute location. St. 1907, c. 233, relating to the abolition of streets and railroad crossings in Clinton, was passed after the commissioners were appointed, and thereafter they acted under this statute as well as under the provisions of the general law. By R. L. c. Ill, § 152, if the commission decided that “the location of the railroad or of the public or private way shall be changed, the decree of the court confirming such decision shall constitute a taking of the specified land or other property.” This statute clearly contemplates that the proposed changes should be described, and that the location if changed or discontinued should be specified, and not left to mere implication. It was said in Mayor & Aldermen of Newton, petitioner, 172 Mass. 5, 7, speaking of St. 1890, c. 428, providing for the abolition of certain grade crossings in Newton: “Except so far as is necessary to accomplish the proposed abolition, the existing conditions are, for aught that appears, to continue substantially as before. If the proposed abolition cannot be accomplished except by discontinuing an existing way and building a new way, or by relocating the railroad, that may be done. But this does not alter the fact that the statute contemplates a continuance of existing conditions, subject to such changes in them as may be required to accomplish the abolition of crossings at grade.” The principle [385] here stated is applicable to the case at bar. The decision does not show that it was necessary to change the existing location in order to accomplish the change in the grade crossings, and the existing conditions were to remain as they were, subject only to such changes as were set out in the decision, and as no specific change in the location was ordered as required by statute, the location continued as before. “It is at least doubtful whether under this requirement a discontinuance £of a public way] could be found to have been made by implication. Certainly, when the statute requires specification not only of any such discontinuance, but also of the grade which is to be established, it would be yet more difficult to infer one of these requisites from a declaration of the other.” Bliss v. Attleborough, 200 Mass. 227, 230, 231. Even if the old location could be discontinued by implication, and a new one substituted, we find nothing in the decision which warrants this inference. No new location was established; the only change in this respect was the making of a new base line, and it cannot be inferred from this that the old location was extinguished. In describing the land taken for slopes, the tract in question is referred to and its boundaries given, and from these boundaries as well as from the plans filed with the report, the defendant contends that the lot is shown to be outside of the railroad location and free from the easement. We do not think it can be implied from this description of the land taken for slopes that the established location of the railroad was discontinued or the easement over the land extinguished. The judge found that the title of the railroad company to the quadrilateral tract was not abandoned. Abandonment is usually a question of fact, Willets v. Langhaar, 212 Mass. 573, and there was no error of law in this finding. The sixth request was refused properly. The mere production of the plan by the Old Colony Railroad at the hearing before the commission, showing that the land conveyed extended one hundred and four feet on High Street, did not work an estoppel against the railroad company. There was no evidence that the defendant was induced by the conduct of the railroad company to do what she otherwise would not have done or to abstain from doing what she would have done, nor that the company knew or had reasonable cause to know that the defendant would so act or refrain from [386] acting to her harm. E. V. Harman & Co. v. William Filene’s Sons Co. 232 Mass. 52. The defendant was not harmed by the exclusion of the question put to the witness Bateman. In reply to a question by the court he stated that “scaling down” forty-one and one half feet from the new base line, the lot in question was not involved. This in effect was an answer to the question éxcluded. Nor was there error in excluding the answer of the witness as to the boundary of the railroad land as shown by the plan. The plan was in evidence and it was not reversible error of law to exclude the interpretation placed on it by the witness. Boston & Albany Railroad v. Reardon, 226 Mass. 286, 292. The defendant made this request: “The plaintiff cannot recover, unless material statements made by the defendant were untrue, and known by the defendant to be untrue, unless such statements were made as of her own knowledge.” The plaintiff does not seek to recover for breach of the covenants in the deed. The action sounds in deceit and the recovery was on this ground; and if the false representations were made by the defendant, she was entitled to this request and it should have been given. Tucker v. White, 125 Mass. 344. Kerr v. Shurtleff, 218 Mass. 167, 171. Bates v. Cashman, 230 Mass. 167. But the record shows that the misrepresentations upon which the plaintiff relied were made with the authority of the defendant and there is no statement that any of the false representations were made by the defendant. We interpret this finding to mean that the misrepresentation was made by an agent or agents of the defendant and not by the defendant herself. If the false statements were made by an agent of the defendant who was authorized to make the sale, she was bound by his fraud if he made the statements knowing them to be false, or if he made them as of his own knowledge, although the defendant did not specifically authorize them and had no knowledge that they were made. Haskell v. Starbird, 152 Mass. 117. For this reason it was not error to refuse this request. We discover no error of law in the findings or rulings made, and we cannot say that as matter of law the land conveyed was not subject to the easement. Exceptions overruled.